Opinion
NO. 01-16-00717-CR
11-16-2017
MARTIN GORMLEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court Harris County, Texas
Trial Court Case No. 1469800
MEMORANDUM OPINION
Martin Gormley was charged with the super-aggravated assault of a child younger than six years old. See TEX. PENAL CODE § 22.021(a)(1)(B)(i), (a)(2)(B). He pleaded not guilty, and the case was tried to a jury. The jury found Gormley guilty and assessed his punishment at 44 years' imprisonment.
On appeal, Gormley contends that (1) the trial court improperly admitted the State's expert's testimony that a fall could not have caused the child's injury over the Gormley's objection that it was speculative and improperly commented that the testimony was being admitted as "expert testimony;" and (2) he received ineffective assistance of counsel. We affirm.
Background
Gormley lived with his girlfriend, Sharon, and Sharon's daughter, Donna, who was three years old at the time of the incident (both names are psuedonyms). Gormley was unemployed in September 2014 and was babysitting Donna while her mother was at work. One afternoon, Gormley called Sharon and asked her to come home because Donna's vagina was injured. When Sharon arrived, she saw "blood everywhere." Donna was lying on the couch. She was shaking and appeared lethargic. Gormley told Sharon that he thought Donna had fallen off of a chair, but Sharon found no blood near the chair. Gormley stated that, although he had not seen the child hurt herself because he was vacuuming in another room, Donna approached him and told him that she fell on a dinette chair that had been pulled up to a bar counter.
Sharon and Gormley took Donna to the emergency room. Sharon contacted her mother, who immediately headed to the hospital to meet them. When Sharon's mother arrived, Gormley was no longer in the room with Donna and Sharon. In Sharon's presence, Donna told her grandmother that Gormley "hurt my pee pee," meaning her vagina. Sharon's mother notified the nurse of Donna's statement.
Dr. Minh Pham, the emergency room physician, testified that after examining Donna, he concluded that Donna had a one-centimeter tear in her vaginal area consistent with a penetrating injury and recommended referral to a specialist for further examination and treatment. Police arranged for Donna to be transferred by ambulance to Memorial Hermann to see a specialist and undergo an examination by a SANE (sexual assault nurse examiner) nurse.
The SANE nurse found a tear and bruising on Donna's labia minora near the hymen. Testing did not show Gormley's semen on Donna's body, but his DNA could not be excluded as a contributor to one of the mixtures of blood and bodily fluid found on her clothing and diaper.
At trial, Dr. Pham stated that the injury to Donna's vagina was inconsistent with a fall, as there was no bruising or other injuries on her body. He testified that Donna's vaginal injury was consistent with penetration of some sort.
DISCUSSION
I. Admission of expert testimony
Gormley contends that the trial court erred in admitting Dr. Pham's opinion that a fall could not have caused Donna's injury because (1) Dr. Pham was unqualified to render an opinion about whether a chair was involved in Donna's accident and the way Donna may have fallen, and (2) he improperly relied on speculation in forming his opinion.
A. Standard of review and applicable law
We review a trial court's decision to admit expert testimony for an abuse of discretion. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. See Blasdell v. State, 470 S.W.3d 59, 62 (Tex. Crim. App. 2015)).
The trial court may admit expert testimony if (1) the witness is qualified as an expert by knowledge, skill, experience, training, or education, and (2) the expert's "scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." TEX. R. EVID. 702. The trial court must be satisfied that (1) the witness qualifies as an expert by reason of her knowledge, skill, experience, training, or education; (2) the subject matter is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the factfinder in deciding the case. Davis v. State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010) (citing Alvarado v. State, 912 S.W.2d 199, 215-16 (Tex. Crim. App. 1995)). "These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance." Id. (citing Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006)).
The Texas Court of Criminal Appeals has interpreted Rule 702 "to require a proponent to prove by clear and convincing evidence that the proffered testimony is reliable and helpful to the jury in deciding the ultimate issue." Blasdell, 470 S.W.3d at 61. We examine the trial court's ruling under these standards.
B. Analysis
Dr. Pham testified:
Q. What was it about the injury that made you feel there was more to the story?
A. Because a fall on a chair does not have this type of injury.
Q. And that—
DEFENSE COUNSEL: Your Honor, I'm going to object. Unless he knows what kind of chair, this is speculation.
THE COURT: Overruled. Admitted as expert testimony.
Gormley first claims that because Dr. Pham is not an expert in pediatric gynecology, he is not qualified to opine that a chair does not cause the type of injury suffered by Donna. Dr. Pham's lack of specialization in gynecology, however, does not render him unqualified to testify concerning the types of injuries that typically result from a fall. Dr. Pham is a board-certified emergency physician with approximately 15 years' experience in emergency medicine. In his practice, he "takes care of any emergency that comes through the door," and has seen "anything from simple ankle sprains to fractured vertebrae, . . . lacerations, . . . heart attacks, strokes, all sorts." Before treating Donna, Dr. Pham had referred approximately nine to twelve patients to undergo SANE examinations, two of whom were children and had all sorts of lacerations. The evidence establishes that Dr. Pham has the knowledge, skill, and experience qualifying him to render an opinion as to the nature of Donna's injury and likely causes and to rule out a fall from a chair as a possible cause of the injury.
Gormley next claims that the trial court should have excluded Dr. Pham's testimony as speculative because he did not have sufficient information concerning the nature of the fall and the type of the chair allegedly involved in the incident. If an expert does not tie the facts of a case to his expert opinion, then the testimony is not admissible. Acevedo v. State, 255 S.W.3d 162, 169 (Tex. App.—San Antonio 2008, pet. ref'd); see also Mata v. State, 46 S.W.3d 902, 915-17 (Tex. Crim. App. 2001) (rejecting expert testimony about retrograde analysis where expert did not consider variables, including when defendant had last eaten, how quickly he consumed alcoholic beverage, and weight and height).
Dr. Pham tied his opinion to the facts of the case. He based his opinion on his physical examination of Donna. In addition, he "discussed the whole story" with both Gormley and the mother, taking a history of the reported events and confirming that the SANE nurse also received this information. Gormley argues that Dr. Pham could not have known all of the details about the chair as Gormley described them to the jury, but the trial court was entitled to credit the physician's testimony that he had elicited Gormley's statement about how the accident happened. Based on a physical examination of Donna, Dr. Pham diagnosed the specific injuries that Donna sustained. Dr. Pham explained the basis for his opinion, including his discovery of a small laceration inside the vaginal area, where injury to a child is very unusual. He further observed that if Donna had been injured from a fall, then there would have been bruising everywhere around that area, not just inside the vaginal area. Based on the reported history, the assessment, and the physical examination, Dr. Pham excluded the possibility that Donna injured herself by falling from a chair. Because Dr. Pham tied his opinion to the relevant facts adduced at trial, we hold that the trial court did not abuse its discretion in admitting his opinion that the laceration was not caused by a fall. See Tillman v. State, 354 S.W.3d 425, 438 (Tex. Crim. App. 2011).
Gormley further contends that the trial court improperly commented that the evidence was admitted as "expert testimony" in overruling the defendant's objection that it was speculative. Gormley, however, did not timely object to the trial court's comment. Ordinarily, a complaint regarding an improper judicial comment must be preserved at trial. Wilson v. State, 473 S.W.3d 889, 903 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (first citing TEX. R. APP. P. 33.1(a); and then citing Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App. 2013)). When no objection is made, the remarks and conduct of the court may not be subsequently challenged unless the error creates egregious harm. Id. (first citing Moreno v. State, 900 S.W.2d 357, 359 (Tex. App.—Texarkana 1995, no pet.); and then citing Powell v. State, 252 S.W.3d 742, 744 (Tex. App.—Houston [14th Dist.] 2008, no pet.)). A trial court's comments do not constitute fundamental error unless they rise to "such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury." Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001).
The Texas Code of Criminal Procedure prohibits the trial judge from discussing or commenting on the weight of the evidence while ruling on its admissibility. TEX. CODE CRIM. PROC. art. 38.05. "To reverse a judgment on the ground of improper conduct or comments of the judge, we must find (1) that judicial impropriety was in fact committed, and (2) probable prejudice to the complaining party." Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd), quoted in Wilson, 473 S.W.3d at 903. Even if Gormley had objected to the trial court's comment, the trial court properly would have overruled the objection. The trial court did not discuss or comment about the weight of the physician's testimony; it merely stated the legal basis for overruling the defense objection.
Gormley did not timely challenge Dr. Pham's qualifications as an expert witness, so he has no grounds to complain about the trial court's identification of Dr. Pham's testimony as that of an expert. Before trial, the State identified Dr. Pham as an expert it expected to call at trial. Gormley did not dispute the State's designation of Dr. Pham as an expert witness. Accordingly, the trial court's articulation of the legal basis for overruling counsel's objection does not constitute an improper comment.
II. Ineffective assistance of counsel
Gormley next contends that he received ineffective assistance of counsel, based on his counsel's failure to (1) secure a hearing on Donna's outcry testimony; (2) object to the physician's testimony regarding Donna's outcry to Donna's grandmother; and (3) request additional relief from the trial court after it sustained his objection to Dr. Pham's testimony that "a child does not lie."
To show ineffective assistance of counsel, Gormley must demonstrate that (1) counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms, and (2) but for counsel's errors, there is a reasonable probability the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984). This standard of proof of ineffective assistance applies to the punishment phase as well as to the trial stage of criminal proceedings. Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S. Ct. 2527, 2536 (2003); see Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). A "reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Wiggins, 539 U.S. at 534, 123 S. Ct. at 2542; Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). It is the defendant's burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813; Jackson, 973 S.W.2d at 956; McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992).
We look to the "totality of the representation and the particular circumstances of each case" in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813. In so doing, we recognize the presumption that counsel's performance fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813. To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland, 928 S.W.2d at 500.
Gormley first argues that his counsel was deficient in failing to secure a hearing on Donna's outcry statement to her grandmother pursuant to article 38.072 of the Code of Criminal Procedure. The outcry statute creates a hearsay exception for a child-complainant's out-of-court "statements" that "describe the alleged offense," so long as those statements were made "to the first [adult] person . . . to whom the child . . . made a statement about the offense." See TEX. CODE CRIM. PROC. art. 38.072, § 2(a)(1)-(3). The statute thus permits the "first person" to whom the child made a "statement about the offense" to testify regarding the statements' contents. Bays v. State, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013) (citing TEX. CODE CRIM. PROC. art. 38.072, § 2(a)).
Before the trial court may admit an "outcry statement," the party intending to offer the statement must notify the adverse party, provide the name of the witness, and provide the adverse party with a written summary of the statement. TEX. CODE CRIM. PROC. art. 38.072; Zarco v. State, 210 S.W.3d 816, 831 (Tex. App.—Houston [14th Dist.] 2006, no pet.). To admit the statement, the trial court, after conducting a hearing outside the presence of the jury, must find that the statement is reliable based on the time, content, and circumstances surrounding its utterance. TEX. CODE CRIM. PROC. art. 38.072(b)(2); Garcia v. State, 228 S.W.3d 703, 706-07 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd).
The record shows that Donna made her outcry statement, that Gormley "hurt my pee pee," in a patient room at the emergency center in the presence of her mother and grandmother. The grandmother informed the attending nurse of Donna's statement, who recorded it in her notes.
Sharon testified to her daughter's outcry statement. The State identified Sharon as a witness through whom it intended to offer Donna's outcry statement. Because Donna first made the statement to both Sharon and her grandmother, Sharon is a proper outcry witness. See TEX. CODE CRIM. PROC. art. 38.072. The State agreed not to call the grandmother as a witness after defense counsel objected based on the prohibition against more than one outcry witness per event. See Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Robinett v. State, 383 S.W.3d 758, 762 (Tex. App.—Amarillo 2012, no pet.) (citing Lopez, 343 S.W.3d at 140). Because defense counsel succeeded in preventing the grandmother from testifying, a hearing on whether the grandmother was an outcry witness was unnecessary. Gormley thus has failed to show ineffective assistance on this ground.
Second, Gormley claims that his counsel was deficient for failing to object to the nursing progress notes as hearsay. At the State's request, Dr. Pham read aloud an excerpt from the nurse's notes that "grandmother states Donna just told me that [Gormley] touched me." The State then asked Dr. Pham, "how does this affect your recommendation on treatment based on that statement?"
Texas Rule of Evidence 803(4) provides a hearsay exception for statements made for medical diagnosis or treatment. The rule exempts statements that describe present symptoms, their inception, or their general cause. TEX. R. EVID. 803(4).
The nurse's notes were admissible under Rule 803(4). They describe a possible cause of Donna's symptoms and identify the person who reportedly injured her, which may have been important for treatment purposes. See Bargas v. State, 252 S.W.3d 876, 896 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ("Because treatment of child abuse includes removing a child from an abusive setting, the identity of the abuser is pertinent to the medical treatment of the child." (citing Moore v. State, 82 S.W.3d 399, 413 (Tex. App.—Austin 2002, pet. ref'd)). Under these circumstances, defense counsel could reasonably decide not to make a hearsay objection because the State did not use it for the truth of the matter asserted, but rather, to elicit information about the doctor's decisions relating to medical treatment. See TEX. R. EVID. 803(4). An attorney's "failure to object to admissible testimony does not constitute ineffective assistance." Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.—Houston [1st Dist.] 1986, pet. ref'd), cited in Bradley v. State, 359 S.W.3d 912, 919 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). Because the nurse's notes fall within the hearsay exception of Rule 803(4), trial counsel was not deficient in failing to object to testimony about them.
Third, Gormley claims that his counsel was deficient in failing to object to testimony about Donna's outcry statement to her grandmother. As noted above, the record belies this claim. The outcry statement came into evidence through a proper witness, and the jury did not hear from the other possible outcry witness. Defense counsel persisted in objecting to the prosecutor's questions to the Children's Assessment Center (CAC) interviewer that sought to elicit a repetition of Donna's outcry statement and was successful in preventing the statement's admission through that avenue. Absent any evidence to the contrary, counsel is presumed to have acted in a reasonably effective manner. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Gormley also challenges as unconstitutional the Court of Criminal Appeals' handling in Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011), of the defendant's ineffective assistance of counsel claim based on counsel's failure to procure a hearing to identify the outcry witness and to allow three witnesses to testify to the child's outcry. Id. at 140. The Court reversed this court's finding of ineffective assistance in the absence of any evidence addressing defense counsel's trial strategy. See id. at 141. The facts in this case are inapposite: Gormley's counsel took actions that successfully prevented inadmissible outcry testimony. We therefore need not address Gormley's constitutional challenge to Lopez.
Finally, Gormley claims his trial counsel was deficient for failing to request additional relief after the trial court sustained counsel's objection to Dr. Pham's statement on the first day of trial that "children do not lie." This statement came on the heels of Dr. Pham's testimony relating to his medical treatment decisions, in particular, his decision to refer Donna for a SANE exam and treatment by a gynecological specialist. The trial court sustained defense counsel's objection to this testimony and instructed the jury to disregard it.
On the second day of trial, the SANE nurse testified in detail about Donna's examination and her opinion that Donna's injuries were consistent with that of a non-accidental penetrating injury, confirming Dr. Pham's opinion. Both the SANE nurse and Dr. Pham concluded that Donna's injuries were not consistent with Gormley's account that Donna injured herself by falling from a chair. Based on the amount and the strength of the evidence in favor of the jury's verdict, Gormley has not demonstrated that the outcome of a new trial would have been different had his counsel pursued a mistrial. See Thomas v. State, 445 S.W.3d 201, 210 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd).
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice Panel consists of Justices Jennings, Bland, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).