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Lamerand v. State

Court of Appeals of Texas, First District of Texas

January 11, 2018


         On Appeal from the 232nd District Court Harris County, Texas Trial Court Case No. 1453794

          Panel consists of Justices Keyes, Brown, and Lloyd.


          Harvey Brown Justice

         Keith William Lamerand was convicted of aggravated sexual assault of a child and sentenced to 30 years' confinement.[1] 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.


         In 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 my parents."

         Kathryn's teacher sent Kathryn to meet with the school counselor, Samantha Clark.[2] 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. Wiers.

         A few 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."

         After the meeting, Wiers contacted Kathryn's mother, Macie Brown.[3]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.

         That 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.

         After 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 pain."

         As the 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.

         Keith was indicted for continuous sexual abuse of a child.[4] 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

         In his 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.[5]

          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 reversible error.").

         Assuming without deciding that the medical report contained inadmissible hearsay and that Keith preserved the error, [6] any 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 same fact).

         Additionally, 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.

         Admission of Outcry Testimony

         In his 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 objections.

         A. Applicable law and standard of review

         Hearsay 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, §§ 1(1), 2.

         To be 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).[7] 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 ...

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