Opinion
No. 07-15-00261-CR
01-07-2016
CHARLES ATTAWAY, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 443rd District Court Ellis County, Texas
Trial Court No. 39214CR, Honorable Cynthia D. Ermatinger, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Charles Attaway appeals his conviction for the continuous sexual abuse of a child. He pled guilty to the charge but punishment was tried to a jury. Now he contends, through two issues, that the trial court erred in admitting hearsay statements made to a nurse examining the victim and that the judgment should be modified to reflect the place of his confinement after conviction. We affirm the judgment.
Issue One - Trial Court in Admitting Evidence
Appellant objected to the following exchange between the prosecutor and a nurse who purportedly obtained a medical history of the victim:
Q: What was the first thing you did with her?According to appellant, the aforementioned statement was inadmissible hearsay because it ". . . was not the type of information that a nurse would rely on to diagnose or treat a patient." We overrule the issue.
A: We did the vital signs, then we talked to the mom.
Q: Okay, when you talked to the mom, what did she tell you?
[Defense Counsel]: Objection, Your honor, calls for hearsay.
[The State]: Judge, I would say that it's a statement for medical diagnosis.
The Court: Overruled.
THE WITNESS: The mother stated that she had found out from the detective -- she said that [the child] was crying because she had been sexually abused by her dad. Then I asked the mom, you know, [d]o you have any decisions or anything like that? She denied that, and she said that [the child] always wanted dad around and he had always been a part of her life. So she didn't expect anything and then she was unaware of the details about what had happened. She just -- the detective told her that she had an - made an outcry, that her dad had abused her.
Assuming arguendo that the testimony was inadmissible, we find the purported error harmless. Evidence of appellant abusing his daughter was admitted elsewhere without objection. Included in that evidence was appellant's own confession wherein he related numerous instances of sexually abusing the victim. Given this and because the improper admission of evidence is not reversible error if the same or similar evidence is admitted elsewhere at trial without objection, Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Peters v. State, No. 10-15-00151-CR, 2015 Tex. App. LEXIS 11688, at *17-18 (Tex. App.—Waco November 12, 2015, no pet.) (mem. op., not designated for publication) (holding that the purported hearsay was harmless because the same information already was admitted via other testimony), the nurse's comment about the victim's "'dad'" abusing the victim is not reversible error.
Regarding the other information in the excerpt and mentioned by appellant in his brief (e.g. the mother denying that she "had any decisions," the child "always want[ing] dad around and he had always been a part of her life," and the mother "didn't expect anything"), we cannot see how it had any effect on the jury's decision. Not only were the comments innocuous, but they had little to do with appellant's guilt or punishment. Their utterance consumed little time and received little attention from the prosecutor elsewhere during the trial. Furthermore, appellant not only pled guilty to the offense but also executed a written confession describing his multiple acts of sexual abuse over the years. That information was before the jury too. Given those circumstances and the entire record before us, we are reasonably assured that the comments did not influence the jury's verdict. See Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004) (stating that an appellate court may not reverse for non-constitutional error if the court, after examining the record as a whole, has fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict).
Issue Two - Modification of Judgment
In his second issue, appellant contends that the judgment requires modification to include the place of his confinement once convicted. Yet, he cites us no authority mandating that such information be included in a judgment. And, while statute does itemize the contents of a judgment, see TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (West Supp. 2015), the convicted person's place of confinement is not included within the list. Therefore, we overrule the issue.
Accordingly, we affirm the judgment.
Per Curiam
Do not publish.