Court of Appeals of Texas, First District of Texas
Appeal from the 232nd District Court Harris County, Texas
Trial Court Case No. 1453794
consists of Justices Keyes, Brown, and Lloyd.
William Lamerand was convicted of aggravated sexual assault
of a child and sentenced to 30 years'
confinement. In five issues, Keith contends that the
trial court abused its discretion in (1) admitting medical
records that contained the complainant's hearsay
statement identifying Keith as her assailant, (2) admitting
outcry testimony from the complainant's school counselor,
(3) admitting outcry testimony from a detective who
interviewed the complainant, (4) admitting evidence that
Keith attempted suicide after his initial interview with the
police, and (5) denying Keith a recess when he received late
notice of the State's intent to present evidence of his
attempted suicide. We affirm.
2013, the then-ten-year-old complainant, pseudonymously
referred to as Kathryn, spent the summer with her
grandmother, Lori Lamerand, and step-grandfather, Keith
Lamerand. Later that November, after Kathryn had returned
home and started school, she wrote a note to her teacher that
said, "My papa has been touching me and I did not tell
teacher sent Kathryn to meet with the school counselor,
Samantha Clark. Ms. Clark testified that, during the
meeting, Kathryn showed her the note and told her that her
grandfather had touched her in "bad spots." Kathryn
"indicated that bad spots were where she went to the
bathroom." Kathryn said that her grandfather tried
"to put his fingers under [her] panties" and then
"kind of drifted off and didn't say anything
more." "She also said that one time she tried to
roll away from him, . . . and he got her bottom
instead." According to Ms. Clark, Kathryn appeared
"scared" and "timid" and cried when she
told her what had happened. Ms. Clark reported the incident
to the authorities, and the case was assigned to Detective M.
days later, Detective Wiers met with Kathryn at school.
During the meeting, Kathryn spoke with Detective Wiers in
detail about the alleged abuse. She told him that, over the
summer, in the mornings before Keith left for work, he would
come into the room where she was sleeping and "touch her
all over, " from her chest down to her knees. She said
that on multiple occasions, Keith "would slide her
underwear to the side, place his hand on her vagina and rub
and then insert his finger."
the meeting, Wiers contacted Kathryn's mother, Macie
Brown.Detective Wiers informed Macie of
Kathryn's allegations and requested that she take Kathryn
to a pediatrician for a sexual assault exam. Detective Wiers
then transferred the case to Sgt. V. Coleman of the Harris
County Sheriff's Office.
December, Sgt. Coleman contacted Keith and Lori, informed
them of the allegations, and scheduled an interview. During
the interview, Keith denied touching Kathryn inappropriately
and explained that in the mornings he would come into her
room and reposition her while she slept. At the end of the
interview, Keith agreed to meet Sgt. Coleman again in late
January. But before their scheduled second meeting, Keith
attempted to take his own life by shooting himself in the
mouth. Keith spent several months in the hospital, where he
underwent multiple surgeries. Keith survived, but the gunshot
wound left him severely disfigured.
Keith was discharged from the hospital, Sgt. Coleman met with
him for a second time. During their second meeting, Keith
told Sgt. Coleman that he had tried to kill himself
"because he didn't want his family to be in
police continued their investigation, Keith and Lori's
niece accused Keith of fondling her breasts when she stayed a
week with them in 2002, when she was eleven years old. The
police also discovered that in 1988, while Keith was serving
in the Navy, he was court-martialed for inappropriately
touching his then-six-year-old daughter. Keith pleaded guilty
to indecency with a child and was sentenced to a short period
of confinement, demoted, and then discharged from the Navy.
was indicted for continuous sexual abuse of a
child. The jury found Keith guilty of a
lesser-included offense, aggravated sexual assault of a
child, and assessed punishment at 30 years' confinement.
The trial court sentenced Keith in accordance with the
jury's verdict. Keith appeals.
Admission of Medical Records
first issue, Keith contends that the trial court abused its
discretion in admitting medical records that contained
Kathryn's hearsay statement identifying Keith as her
assailant. During trial, the State offered into evidence a
report prepared by the pediatrician who performed
Kathryn's sexual-assault examination, Dr. Cynthia Smith.
The report contained Kathryn's statement that her
"grandpa" gave her "bad touches." Keith
objected that the statement was hearsay. The State responded
that the statement was admissible because it was made for
medical diagnosis or treatment. See Tex. R. Evid.
803(4). The trial court overruled Keith's objection and
admitted the report. Keith argues that the trial court's
ruling was an abuse of discretion because the report
contained hearsay that did not fall under the exception for
medical diagnosis or treatment. He concedes that certain
information reasonably pertinent to diagnosis and treatment
was admissible but contends that Kathryn's statement
identifying him as her assailant was not.
Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted. See Tex. R. Evid.
801(d). It is inadmissible unless a statute or rule provides
otherwise. Tex. R. Evid. 802. The erroneous admission of
hearsay does not constitute reversible error "if other
evidence proving the same fact is properly admitted
elsewhere." Infante v. State, 404 S.W.3d 656,
663 (Tex. App.-Houston [1st Dist.] 2012, no pet.) (quoting
Land v. State, 291 S.W.3d 23, 28 (Tex. App.-
Texarkana 2009, pet. ref'd)) (brackets omitted); see
Josey v. State, 97 S.W.3d 687, 698 (Tex. App.-Texarkana
2003, no pet.) ("If the same or similar evidence is
admitted without objection at another point during the trial,
improper admission of the evidence will not constitute
without deciding that the medical report contained
inadmissible hearsay and that Keith preserved the error,
error in admitting the report was harmless because the State
offered other evidence that Kathryn told Dr. Smith that Keith
was her assailant. Specifically, Dr. Smith testified without
objection that Kathryn told her that "her grandpa gave
her bad touches." Because the same fact was established
with other evidence admitted without objection, we hold that
any error in admitting Dr. Smith's report was harmless.
See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim.
App. 1999) (holding that any error in admitting evidence that
declarant told witness that victim was being
"jacked" under exception to hearsay rule was
harmless in light of other properly admitted evidence proving
Kathryn herself testified in detail about the abuse,
specifically identifying Keith as the man who assaulted her.
See Taylor v. State, 268 S.W.3d 571, 593 (Tex. Crim.
App. 2008) (holding that error in admitting child's
statement to counselor identifying defendant as assailant was
harmless when child repeatedly told her version of events to
other witnesses and jury); Perez v. State, No.
14-11-01102-CR, 2013 WL 655714, at *6 (Tex. App.-Houston
[14th Dist.] Feb. 21, 2013, no pet.) (mem. op., not
designated for publication) (holding that erroneous admission
of complainant's medical records was harmless when same
facts were "established by the complainant's own
testimony and the testimony of the deputy constable who took
her statement and observed her injuries"). Thus, any
error in the admitting the unredacted medical report was
harmless. We overrule Keith's first issue.
of Outcry Testimony
second and third issues, Keith contends that the trial court
abused its discretion in admitting outcry testimony from Ms.
Clark and Detective Wiers. During trial, Keith objected to
Ms. Clark and Detective Wiers testifying to any hearsay
statements made by Kathryn. The State responded that
Kathryn's hearsay statements to Ms. Clark and Detective
Wiers were admissible outcries under Article 38.072 of the
Code of the Criminal Procedure. The trial court held a
hearing outside the presence of the jury, determined that the
statements were admissible, and overruled Keith's
Applicable law and standard of review
is generally inadmissible. See Tex. R. Evid. 802.
Article 38.072 creates an exception for certain outcry
statements made by children who are the victims of sexual
assault. Tex. Code Crim. Proc. art. 38.072, §§
admissible in the guilt-innocence phase of a trial, the
statement must describe the alleged offense and be made by
the child against whom the act was committed. Id.
§ 2(a)(1)(A), (a)(2). The witness testifying about the
outcry must be the first person, 18 years of age or older,
other than the defendant, to whom the child made a statement
about the offense. Id. § 2(a)(3). And 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. Id.
§ 2(b)(2). Courts have identified eleven factors to
consider in determining the statement's reliability:
(1) whether the victim testifies at the trial and admits
making the out-of-court statement; (2) whether the child is
of a level of maturity to understand the need to tell the
truth and to have the ability to observe, recollect, and
narrate; (3) whether the child's out-of-court statement
is corroborated by other evidence; (4) whether the
child's out-of-court statement was spontaneously made in
the child's own terminology or whether there is evidence
of prior prompting or manipulation by adults; (5) whether the
child's out-of-court statement is clear and unambiguous
and rises to the needed level of certainty; (6) whether the
statement is consistent; (7) whether the statement describes
an event that a child of his or her age could not be expected
to fabricate; (8) whether there is abnormal behavior by the
child after the contact; (9) whether there is a motive for
the child to fabricate the out-of-court statement; (10)
whether the ...