Turner v. State, 924 S.W.2d 180 (Tex. App. 1996). · Go Syfert
Turner v. State, 924 S.W.2d 180 (Tex. App. 1996). Cases Citing This Book View Copy Cite
71 citation events (58 in the last 25 years) across 2 distinct courts.
Strongest positive: John Desmond Crawford v. the State of Texas (texapp, 2024-06-20) · Strongest negative: Moore v. State (texapp, 2002-08-21)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 45 distinct citers.
discussed Cited "but see" Moore v. State (2×)
Tex. App. · 2002 · signal: but see · confidence high
But see Turner v. State, 924 S.W.2d 180, 182 (Tex.App.-East-land 1996, pet. ref’d) (citing Fleming for proposition that “[statements describing abusive acts are pertinent to medical diagnosis and treatment”). .Addressing the admissibility of hearsay statements made by a child witness in child sexual abuse cases, the Supreme Court recognized generally that there are a number of factors that relate to whether such statements are reliable, including the: (i) spontaneity and consistency of repetition; (ii) mental state of the declarant; (iii) use of terminology unexpected of a child of simil…
discussed Cited "but see" James Gibson Moore, III v. State
Tex. App. · 2002 · signal: but see · confidence high
But see Turner v. State, 924 S.W.2d 180, 182 (Tex. App.—Eastland 1996, pet. ref’d) (citing Fleming for proposition that “[s]tatements describing abusive acts are pertinent to medical diagnosis and treatment”). 8 the rule’s requirement that it be both made for the purpose of and reasonably pertinent to medical diagnosis or treatment.
discussed Cited "but see" James Gibson Moore, III v. State
Tex. App. · 2002 · signal: but see · confidence high
But see Turner v. State , 924 S.W.2d 180, 182 (Tex. App.--Eastland 1996, pet. ref'd) (citing Fleming for proposition that "[s]tatements describing abusive acts are pertinent to medical diagnosis and treatment"). 8.
cited Cited as authority (rule) John Desmond Crawford v. the State of Texas
Tex. App. · 2024 · confidence medium
The State points to case law defining a distinct event as the “offense as alleged in the indictment.” Turner v. State, 924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref’d).
discussed Cited as authority (rule) Victor Lawrence Baxter v. the State of Texas
Tex. App. · 2023 · confidence medium
Evid. 803(1), (2) (providing exception to hearsay rule for present sense impression and excited utterance); Turner v. State, 924 S.W.2d 180, 182 (Tex. App.—Eastland 1996, pet. ref’d) (holding that statements describing abusive acts are pertinent to medical diagnosis and treatment). 41 at *5 (Tex. App.—Houston [1st Dist.] Dec. 3, 2020, no pet.) (mem. op., not designated for publication) (“[B]ecause [the appellant] has neither identified which 911 calls were erroneously admitted and which statements were testimonial in nature (and thus violative of his Confrontation Clause rights), nor h…
discussed Cited as authority (rule) Woodrow Maybin v. the State of Texas (2×) also: Cited "see"
Tex. App. · 2023 · confidence medium
Hernandez v. State, 973 S.W.2d 787, 789 (Tex. App.—Austin 1998, pet. ref’d) (citing Turner v. State, 924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref’d) (concluding officer could testify to victim’s outcry about penile penetration because victim’s previous outcry to counselor was about digital penetration)).
discussed Cited as authority (rule) Casey Cox v. the State of Texas
Tex. App. · 2021 · confidence medium
See Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d) (holding that rule 803(4) covered statements describing penile-anal and penile-oral penetration, and that the complainant thought defendant was “so sick” that he “made her want to puke” when he made her watch pornography); Turner v. State, 924 S.W.2d 180, 189 (Tex. App.— Eastland 1996, pet. ref’d) (allowing the treating doctor to testify about the child complainant’s reports of penetration).
discussed Cited as authority (rule) Jose Israel Ramos v. State
Tex. App. · 2019 · confidence medium
See Bargas v. State, 252 S.W.3d 876, 896 (Tex. App—Houston [14th Dist.] 2008, no pet.) (“Because treatment of child abuse involves removing child from abusive setting, the identity of abuser is pertinent to medical treatment of the child.”); Mendoza v. State, 69 S.W.3d 628, 634 (Tex. App.—Corpus Christi–Edinburg 2002, pet. ref’d) (concluding that child’s statements to nurse about nature of the child’s injuries and naming the defendant as the person who caused them were admissible under medical diagnosis exception); Molina v. State, 971 S.W.2d 676 , 683–84 (Tex. App.—Houston…
cited Cited as authority (rule) Albert Lee Staner v. State
Tex. App. · 2019 · confidence medium
See Eldred v. State, 431 S.W.3d 177 , 184–85 (Tex. App.—Texarkana 2014, pet. ref’d); Turner v. State, 924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref’d).
discussed Cited as authority (rule) State v. Ayoob Akteyarlee
Tex. App. · 2016 · confidence medium
Cf. Pierce v. State, No. 10-09-00320-CR, 2010 WL 2683052 , at *2 (Tex. App.—Waco July 7, 2010, no pet.) (mem. op., not designated for publication) (holding that trial court did not abuse its discretion in failing to sustain appellant’s objection to outcry witness’s testimony when witness was first person whom victim had told that defendant penetrated victim’s sexual organ with his tongue); Garza v. State, No. 03-04-00508-CR, 2006 WL 2706964 , at *5 (Tex. App.—Austin Sept. 21, 2006, pet. ref’d) (mem. op., not designated for publication) (holding that forensic interviewer was proper …
discussed Cited as authority (rule) Marvin Noel Caballero-Lopez v. State
Tex. App. · 2015 · confidence medium
See Tear, 74 S.W.3d at 559 ; see 10 also Pierce v. State, No. 10–09–00320–CR, 2010 WL 2683052 , at *1–2 (Tex. App.— Waco July 7, 2010, no pet.) (mem. op., not designated for publication) (holding trial court did not abuse its discretion by permitting forensic interviewer’s outcry testimony that appellant inserted his tongue into victim’s vagina when another witness testified that appellant touched victim's vagina did not describe charged offense—appellant penetrating victim's sex organ with his tongue—in any discernible way); Sledge v. State, No. 03–03–00092–CR, 2004 WL…
discussed Cited as authority (rule) Buckner, Bobby Joe
Tex. App. · 2015 · confidence medium
"If the child victim first described one type of abuse to one outcry witness and first described a different type of abuse to a second outcry witness the second witness could testify about the different issue of abuse." Id. (citing Turner v._ State, 924 S.W.2d 180, 183 (Tex. App.-Eastland 1996, pet._ref‘d) (police officer could testify about victim's outcry about penile penetration because victim's previous outcry to counselor was about digital penetration)).
discussed Cited as authority (rule) Steven Oliver v. State
Tex. App. · 2014 · confidence medium
“If the child victim first described one type of abuse to Oliver v. State Page 3 one outcry witness, and first described a different type of abuse to a second outcry witness, the second witness could testify about the different instance of abuse.” Id. (citing Hernandez, 973 S.W.2d at 789 (holding that a CPS worker could testify about a victim’s outcry of sexual assault because the victim’s previous outcry was to his mother about another sexual assault at a different location); Turner v. State, 924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref’d) (stating that a police officer …
discussed Cited as authority (rule) Bruce Williams v. State
Tex. App. · 2014 · confidence medium
Thus, statements describing the acts of sexual abuse are pertinent to the victim’s medical diagnosis and treatment.” (citing Turner v. State, 924 S.W.2d 180, 182 (Tex. App.—Eastland 1996, pet. ref’d); Macias v. State, 776 S.W.2d 255, 259 (Tex. App.—San Antonio 1989, pet. ref’d))); see also Sosa v. Williams v. State Page 7 State, No. 05-11-01294-CR, 2012 Tex. App. LEXIS 9807 , at **7-8 (Tex. App.—Dallas Nov. 28, 2012, no pet.) (mem. op., not designated for publication) (same).
discussed Cited as authority (rule) Leon Thomas Bunce v. State
Tex. App. · 2013 · confidence medium
“If the child victim first described one type of abuse to one outcry witness, and first described a different type of abuse to a second outcry witness, the second witness could testify about the different instance of abuse.” See id. (citing Turner v. State, 924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref’d) (police officer could testify about victim’s outcry about penile penetration because victim’s previous outcry to counselor was about digital penetration)).
discussed Cited as authority (rule) Johnny Patterson v. State (2×) also: Cited "see"
Tex. App. · 2012 · confidence medium
Ann. art. 38.072, § 2(a)(1)(A); Brown, 189 S.W.3d at 386 (reviewing victim‘s description of the offense and noting that it tracked the language of the statute defining the offense for which appellant was convicted); see Pierce v. State, No. 10-09- 00320-CR, 2010 WL 2683052 , at *1–2 (Tex. App.—Waco July 7, 2010, no pet.) (mem. op., not designated for publication) (holding that trial court did not abuse its discretion by permitting forensic interviewer‘s outcry testimony that appellant had inserted his tongue into victim‘s vagina when other witness‘s testimony that appellant had to…
discussed Cited as authority (rule) in Re John Edward Morris
Tex. App. · 2010 · confidence medium
See Tear v. State, 74 S.W.3d 555, 559 (Tex. App.—Dallas 2002, pet. ref’d) (second outcry witness could testify as to victim’s statement about defendant putting victim’s penis in defendant’s mouth because first outcry witness testified only as to victim’s statement about defendant putting fingers in victim’s buttocks); Turner v. State, 924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref’d) (second outcry witness could testify as to victim’s statement about penile penetration because first outcry witness testified only as to victim’s statement about digital penetration).
discussed Cited as authority (rule) Jeremy Wayne Dorsey v. State
Tex. App. · 2010 · confidence medium
See Tear v. State , 74 S.W.3d 555, 559 (Tex. App.--Dallas 2002, pet. ref'd) (second outcry witness could testify as to victim's statement about defendant putting victim's penis in defendant's mouth because first outcry witness testified only as to victim's statement about defendant putting fingers in victim's buttocks); Turner v. State , 924 S.W.2d 180, 183 (Tex. App.--Eastland 1996, pet. ref'd) (second outcry witness could testify as to victim's statement about penile penetration because first outcry witness testified only as to victim's statement about digital penetration).
discussed Cited as authority (rule) Taylor, Rashik Ali
Tex. Crim. App. · 2008 · confidence medium
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 [1 st ] 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…
discussed Cited as authority (rule) Taylor, Rashik Ali
Tex. Crim. App. · 2008 · confidence medium
Thus, early Texas cases seemed to rely only on the second part of the two-part test from Iron Shell.68 None of these early cases went on to inquire (as the Eighth Circuit did in Renville), as to the first part of the two-part Iron Shell test—whether the record showed that the child-victim had understood that she had made the statement for the purpose of diagnosis or treatment, or had been made aware of the 67 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 ch…
discussed Cited as authority (rule) Taylor v. State (2×)
Tex. Crim. App. · 2008 · confidence medium
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)); Fle…
discussed Cited as authority (rule) Nino v. State
Tex. App. · 2007 · confidence medium
Compare Klein v. State, 191 S.W.3d 766, 780 (Tex.App.-Fort Worth 2006, pet. ref'd) (distinguishing Garcia and concluding that statements from complainant to teacher, such as “sometimes he messes with me” and that her dad “tickled her and sometimes touched her between her legs with his fingers, and sometimes he used his tongue” were sufficient to identify in a discernible manner the type of sexual abuse that was going on at home), Brown v. State, 189 S.W.3d 382 (Tex.App.-Texarkana 2006, pet. ref'd) (concluding that a counselor was not the proper outcry witness because child complainant …
discussed Cited as authority (rule) Andres Nino v. State
Tex. App. · 2007 · confidence medium
Compare Klein v. State, 191 S.W.3d 766, 780 (Tex. App. C Fort Worth 2006, pet. ref = d) (distinguishing Garcia and concluding that statements from complainant to teacher, such as A sometimes he messes with me @ and that her dad A tickled her and sometimes touched her between her legs with his fingers, and sometimes he used his tongue @ were sufficient to identify in a discernible manner the type of sexual abuse that was going on at home), Brown v. State, 189 S.W.3d 382 (Tex. App. C Texarkana 2006, pet. ref = d) (concluding that a counselor was not the proper outcry witness because child compla…
discussed Cited as authority (rule) James Ficarro v. State (2×) also: Cited "see"
Tex. App. · 2007 · confidence medium
Turner v. State , 924 S.W.2d 180, 183 (Tex. App.-Eastland 1996, pet. ref'd) (explaining that a police officer could testify about the victim's outcry about penile penetration because victim's previous outcry to counselor was about digital penetration); see Hernandez , 973 S.W.2d at 789 (concluding that a CPS worker could testify about victim's outcry of sexual assault at one location because victim's previous outcry to his mother was about another sexual assault at different location).
discussed Cited as authority (rule) Marshall Moreno v. State
Tex. App. · 2005 · confidence medium
The exception permits testimony of multiple outcries if they regard “discrete occurrences” or “discrete events” of abuse.4 Id. (different times and locations of abuse); Turner v. State, 924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref’d) (officer could testify to victim’s outcry about penile penetration because victim’s previous outcry to counselor was only about digital penetration; indictment alleged penile penetration); see also Divine v. State, 122 S.W.3d 414, 419-20 (Tex. App.—Texarkana 2003, pet. ref’d); Josey v. State, 97 S.W.3d 687, 693 (Tex. App.—Texarkana …
discussed Cited as authority (rule) Marshall Moreno v. State
Tex. App. · 2005 · confidence medium
The exception permits testimony of multiple outcries if they regard "discrete occurrences" or "discrete events" of abuse. (4) Id. (different times and locations of abuse); Turner v. State , 924 S.W.2d 180, 183 (Tex. App.--Eastland 1996, pet. ref'd) (officer could testify to victim's outcry about penile penetration because victim's previous outcry to counselor was only about digital penetration; indictment alleged penile penetration); see also Divine v. State , 122 S.W.3d 414, 419-20 (Tex. App.--Texarkana 2003, pet. ref'd); Josey v. State , 97 S.W.3d 687, 693 (Tex. App.--Texarkana 2003, no pet.…
discussed Cited as authority (rule) Matthew Sledge v. State
Tex. App. · 2004 · confidence medium
“If the child described one type of abuse to one witness and a different type of abuse to the second listener, the second listener could testify about that distinct offense.” Id. (citing Turner v. State, 924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref’d) (police officer could testify about victim’s outcry about penile penetration because victim’s previous outcry to counselor was about digital penetration)).
discussed Cited as authority (rule) Matthew Sledge v. State
Tex. App. · 2004 · confidence medium
"If the child described one type of abuse to one witness and a different type of abuse to the second listener, the second listener could testify about that distinct offense." Id . (citing Turner v. State , 924 S.W.2d 180, 183 (Tex. App.--Eastland 1996, pet. ref'd) (police officer could testify about victim's outcry about penile penetration because victim's previous outcry to counselor was about digital penetration)).
discussed Cited as authority (rule) Robert Josey v. State
Tex. App. · 2003 · confidence medium
"If the child victim first described one type of abuse to one outcry witness, and first described a different type of abuse to a second outcry witness, the second witness could testify about the different issue of abuse." Id. (citing Turner v. State , 924 S.W.2d 180, 183 (Tex. App.-Eastland 1996, pet. ref'd) (police officer could testify about victim's outcry about penile penetration because victim's previous outcry to counselor was about digital penetration)).
discussed Cited as authority (rule) Josey v. State
Tex. App. · 2003 · confidence medium
“If the child victim first described one type of abuse to one outcry witness, and first described a different type of abuse to a second outcry witness, the second witness could testify about the different issue of abuse.” Id. (citing Turner v. State, 924 S.W.2d 180, 183 (Tex.App.-Eastland 1996, pet. ref'd) (police officer could testify about victim’s outcry about penile penetration because victim’s previous outcry to counselor was about digital penetration)).
discussed Cited as authority (rule) Tear v. State (2×) also: Cited "see"
Tex. App. · 2002 · confidence medium
Turner v. State, 924 S.W.2d 180, 183 (Tex.App.-Eastland 1996, pet. ref'd) (police officer could testify about victim’s outcry about penile penetration because victim’s previous outcry to counselor was about digital penetration); see Hernandez, 973 S.W.2d at 789 (CPS worker could testify about victim’s outcry of sexual assault at one location because victim’s previous outcry to his mother was about another sexual assault at different location). 3.
discussed Cited as authority (rule) Foreman v. State
Tex. App. · 1999 · confidence medium
See Campos v. State, 977 S.W.2d 458, 460-61 (Tex.App.—Waco 1998, no pet.) (teacher was outcry witness when six-year-old child told mother of abuse, then three years later told teacher that defendant had touched her privates “last year”; court held complainant was reporting instances separate in time); Reed v. State, 974 S.W.2d 838, 841-42 (Tex.App.—San Antonio 1998, pet. ref'd) (father was proper outcry witness when girls told him how, when, and where neighbor had touched them, although child-protective-service worker took more detailed statements next day); Hinds v. State, 970 S.W.2d …
discussed Cited as authority (rule) George Foreman v. State (2×)
Tex. App. · 1999 · confidence medium
See Campos v. State , 977 S.W.2d 458, 460-61 (Tex. App.--Waco 1998, no pet.) (teacher was outcry witness when six-year-old child told mother of abuse, then three years later told teacher that defendant had touched her privates "last year"; court held complainant was reporting instances separate in time); Reed v. State , 974 S.W.2d 838, 841-42 (Tex. App.--San Antonio 1998, pet. ref'd) (father was proper outcry witness when girls told him how, when, and where neighbor had touched them, although child-protective-service worker took more detailed statements next day); Hinds v. State , 970 S.W.2d 3…
discussed Cited as authority (rule) Hernandez v. State
Tex. App. · 1998 · confidence medium
Turner v. State, 924 S.W.2d 180, 183 (Tex.App.—Eastland 1996, pet. ref'd) (officer could testify to victim’s outcry about penile penetration because victim’s previous outcry to counselor was about digital penetration, not penile penetration).
discussed Cited as authority (rule) Domingo Rivera Hernandez v. State (2×)
Tex. App. · 1998 · confidence medium
Turner v. State , 924 S.W.2d 180, 183 (Tex. App.--Eastland 1996, pet. ref'd) (officer could testify to victim's outcry about penile penetration because victim's previous outcry to counselor was about digital penetration, not penile penetration).
discussed Cited "see" Roy Landaverde v. the State of Texas
Tex. App. · 2025 · signal: accord · confidence high
Thus, statements describing acts of sexual abuse are pertinent to the victim's medical diagnosis and treatment." Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref'd); accord Turner v. State, 924 S.W.2d 180, 182 (Tex. App.—Eastland 1996, pet. ref'd); see also Macias v. State, 776 S.W.2d 255, 259 (Tex. App.—San Antonio 1989, pet. ref'd) (holding that 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").
discussed Cited "see" Patricio Hernandez, Jr. v. the State of Texas
Tex. App. · 2024 · signal: accord · confidence high
Thus, statements describing acts of sexual abuse are pertinent to the victim’s medical 15 diagnosis and treatment.” Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d); accord Turner v. State, 924 S.W.2d 180, 182 (Tex. App.— Eastland 1996, pet. ref’d); see also Macias v. State, 776 S.W.2d 255, 259 (Tex. App.—San Antonio 1989, pet. ref’d) (holding that 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”).
cited Cited "see" Fernando Sonny Monroy v. the State of Texas
Tex. App. · 2021 · signal: see · confidence high
See Turner v. State, 924 S.W.2d 180, 183 (Tex. App.— Eastland 1996, pet. ref’d) (citing Garcia v. State, 792 S.W.2d 88 , 91–92 (Tex. Crim.
discussed Cited "see" Luis Ramirez Ruedas A/K/A Luis Ramirez Ruebas v. State
Tex. App. · 2015 · signal: see · confidence high
See Turner v. State, 924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref’d) (citing Garcia, 792 S.W.2d at 91–92) (the outcry witness must be the first person to whom the child makes a statement that, in some discernible manner, describes the alleged offense). 8 Accordingly, the trial court did not abuse its discretion when it permitted Paschall to testify as an outcry witness.
discussed Cited "see" Stevdrick Jackson v. State
Tex. App. · 2012 · signal: see · confidence high
See Turner v. State, 924 S.W.2d 180, 182 (Tex. App.—Eastland 1996, pet. ref’d) (recognizing defendant’s theory that another person committed the charged offense raised an issue regarding identity of the perpetrator). 1 An HPD firearms expert testified that a bullet casing found in Baresh’s motel room was ejected from the .22 caliber handgun recovered from the Lexus. 2 Appellant did not object to the trial court’s oral limiting instruction or jury-charge instruction regarding consideration of the extraneous-offense evidence. 4 Accordingly, we overrule appellant’s sole issue and affi…
discussed Cited "see" Richard Gerard Garza v. State (2×)
Tex. App. · 2006 · signal: see · confidence high
Before more than one outcry witness may testify, however, the outcry must be about different events, and not simply a repetition of the same event as related by the victim to different individuals." Broderick v. State , 35 S.W.3d 67, 73 (Tex. App.--Texarkana 2000, pet. ref'd); see Turner v. State , 924 S.W.2d 180, 183 (Tex. App.--Eastland 1996, pet. ref'd).
discussed Cited "see" Richard Gerard Garza v. State (2×)
Tex. App. · 2006 · signal: see · confidence high
Before more than one outcry witness may testify, however, the outcry must be about different events, and not simply a repetition of the same event as related by the victim to different individuals.” Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000, pet. ref’d); see Turner v. State, 924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref’d).
cited Cited "see" Broderick v. State
Tex. App. · 2000 · signal: see · confidence high
See Turner v. State, 924 S.W.2d 180, 183 (Tex.App.—Eastland 1996, pet. refd); see also Hernandez v. State, 973 S.W.2d 787, 789 (Tex.App.— Austin 1998, pet. ref'd).
discussed Cited "see" Beheler v. State (2×)
Tex. App. · 1999 · signal: see · confidence high
See Turner v. State, 924 S.W.2d 180, 182 (Tex.App.—Eastland 1996, pet. ref'd); Macias v. State, 776 S.W.2d 255, 259 (Tex.App.—San Antonio 1989, pet. ref'd).
cited Cited "see" Molina v. State
Tex. App. · 1998 · signal: see · confidence high
See id. at 183 .
Robert Wayne TURNER, Appellant,
v.
STATE of Texas, Appellee
11-95-357-CR.
Court of Appeals of Texas.
Apr 18, 1996.
924 S.W.2d 180
Martin L. Peterson, Stephenville, for appellant., John Terrill, District Attorney, Stephen-ville, for appellee.
Arnot, Dickenson, McCLOUD.
Cited by 52 opinions  |  Published

OPINION

ARNOT, Chief Justice.

The jury convicted Robert Wayne Turner of the aggravated sexual assault [1] of his 10-year-old adopted daughter and assessed his punishment at 25 years confinement. [2] In four points of error, appellant complains that the trial court erred in admitting hearsay and evidence of extraneous offenses. We affirm.

The record reflects that, after she watched a videotape at school on physical and sexual abuse, the victim told her teacher that appellant had hurt her. The teacher referred her to the school counselor, and the counselor called representatives from the local police department and child protective services.

At trial, the victim testified that appellant came into her room at night and penetrated her vagina with his penis. The victim was unable to specifically testify as to the date the assault took place. The record reflects that the victim had a learning disability that affected her ability to understand the sequencing of events. The school counselor testified that the victim had difficulty understanding time sequence, that she had a problem remembering dates, and that she had difficulty with such words as “yesterday,” “today,” and “tomorrow.”

Appellant testified that he had adopted the victim in July of 1994 about six months before the alleged sexual assault in January of 1995. He denied ever sexually assaulting the victim. When he was arrested, appellant told the officer, “[Mjaybe that it was her real dad that did it.” Appellant testified that, one time after she had visited her biological father when she was four or four-and-a-half years old, appellant walked into the victim’s bedroom with the victim’s mother and found the victim “humping” on her teddy bear. Appellant stated that, when they asked the victim about her behavior, the victim said “her daddy taught her.” At trial, appellant attempted to show that the victim accused him of the sexual assault instead of her biological father because of her difficulty with time sequence.

On rebuttal, Officer Don Miller and the victim testified that appellant had performed other similar sexual acts with the victim. The victim also testified that she did not “remember anything” about her biological father and that she was “pretty young” the last time that she had seen him. The trial court overruled appellant’s objection to the admission of extraneous offenses.

[*182] In his first point of error, appellant complains that Officer Miller’s testimony was hearsay and that the victim’s testimony was inadmissible under TEX.R.CRIM.EVID. 404(b). We disagree.

Evidence of other crimes is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes: proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Rule 404(b); Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App.1991). [3]

Appellant’s theory was that the victim’s biological father had committed the offense. This placed the identity of the perpetrator in issue. We hold that the evidence that appellant committed similar sexual acts with the victim was admissible to prove appellant’s identity. Rule 404(b); see Easter v. State, 867 S.W.2d 929 (Tex.App.—Waco 1993, pet’n refd). The trial court did not err in overruling appellant’s objection. Romero v. State, 800 S.W.2d 539 (Tex.Cr.App.1990); Calloway v. State, 743 S.W.2d 645 (Tex.Cr.App.1988).

Appellant argues, alternatively, that the evidence should have been excluded under TEX.R.CRIM.EVID. 403 due to its prejudicial and misleading effect. The probative value of the evidence was not substantially outweighed by its prejudicial effect. Rule 403. Appellant’s first point of error is overruled.

In his second point of error, appellant complains that the trial court erred in not granting a mistrial after the doctor who had examined the victim testified concerning extraneous offenses. On direct examination, the prosecutor asked the doctor:

Q: What, if any, history did she give you in regard to the allegation that — huh— that she had been penetrated by her stepfather committing a sexual assault by penetrating her vagina with his penis?
A: Yes, she did tell me that, that she— huh — her words as I put them in here are — huh—is that, sometimes he’d put his penis in my pants and other times in my vagina — huh—she—he—sometimes he will stick his fingers in my vagina, she also said that he would—

The trial court sustained appellant’s objection to the testimony of extraneous offenses and instructed the jury to disregard the testimony. The doctor then testified that the victim stated that her stepfather had penetrated her with his penis. The doctor described the physical examination that she performed on the victim and testified that the victim’s hymen was torn.

An admission of improper testimony is cured by the trial court’s instruction to disregard; and any error is rendered harmless except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jmy and is of such a character as to suggest the impossibility of withdrawing the impression produced in their minds. Campos v. State, 589 S.W.2d 424 (Tex.Cr.App.1979). The doctor’s testimony addressed the victim’s medical history for purposes of a diagnosis and was not so prejudicial as to require a mistrial. Appellant’s second point of error is overruled.

In his third point of error, appellant complains that the testimony of the doctor concerning the victim’s statement of penetration improperly bolstered the victim’s testimony and did not come within the hearsay exception described in TEX.R.CRIM. EVID. 803(4). We disagree.

Statements made for purposes of medical diagnosis or treatment and describing medical history or past or present symptoms pertinent to diagnosis or treatment are admissible as an exception to the hearsay rule. Rule 803(4). Statements describing abusive acts are pertinent to medical diagnosis and treatment. Fleming v. State, 819 S.W.2d 237 (Tex.App.—Austin 1991, pet’n refd); Macias v. State, 776 S.W.2d 255 (Tex.App—San Antonio 1989, pet’n refd). Appellant’s third point of error is overruled.

[*183] In his fourth point of error, appellant contends that the trial court erred in admitting hearsay testimony when Officer Miller testified that the victim told him that appellant penetrated the victim’s vagina with his penis. Appellant argues that the counselor was the first person the victim told about the offense. Therefore, appellant contends that Officer Miller’s testimony did not meet the outcry witness exception set out in TEX. CODE CRIM.PRO.ANN. art. 38.072, § (2)(a) (Vernon Supp.1996).

Article 38.072, section (2)(a) states:

This article applies only to statements that describe the alleged offense that:
(1) were made by the child against whom the offense was allegedly committed; and

(2) were made to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense. (Emphasis added)

In Garcia v. State, 792 S.W.2d 88 (Tex.Cr.App.1990), the court interpreted the phrase “statement about the offense” to mean that the outcry witness must be the first person to whom the child makes a statement that, in some discernible, manner describes the alleged offense. The statement must be more than words that give a general allusion that something in the area of child abuse was going on. Garcia v. State, supra.

The indictment alleged that appellant penetrated the victim’s vagina with his penis. Although she told the counselor that appellant penetrated her vagina with his finger, the victim did not tell the counselor that appellant penetrated her with his penis. Officer Miller testified that the victim told him that appellant penetrated her vagina with his penis. Therefore, the record reflects that Officer Miller was the first person over the age of 18 the victim told about the offense as alleged in the indictment. Garcia v. State, supra; Schuster v. State, 852 S.W.2d 766 (Tex.App.—Fort Worth 1993, pet’n ref'd). Appellant’s fourth point of error is overruled.

The judgment of the trial court is affirmed.

1

. TEX.PENAL CODE ANN. § 22.021 (Vernon Supp.1996) defines the offense of aggravated sexual assault and provides that it is a felony of the first degree.

2

. TEX.PENAL CODE ANN. § 12.32 (Vernon 1994) provides that a person convicted of a felony of the first degree shall be punished by imprisonment for life or for any term of not more than 99 years nor less than 5 years. In addition to imprisonment, an optional fine not to exceed • $10,000 may also be assessed.

3

. Evidence of extraneous offenses is not admissible under Rule 404(b) when a defendant attacks the victim’s credibility by denying that he committed the instant offense. Pavlacka v. State, 892 S.W.2d 897, 902 (Tex.Cr.App.1994).