In Treatment: Court Of Appeals Of Texas Finds Trial Court Properly Allowed For The Admission Of Child’s Statements To Doctor Concerning Sexual Assault By His Father

Like its federal counterpart, Texas Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

The basis for this exception is that a patient would not lie to his doctor for fear of mistreatment and/or misdiagnosis. And the exception typically only allows for the admission of those portions of a patient’s statements describing the “general character of the cause or external source” of his injury or illness and does not allow for the admissions of those portions describing the identity of the person causing the injury or illness, if applicable. But what if the patient is a child? Does the child understand the consequences of lying to a doctor, making his statements sufficiently reliable? And if the source of a child patient’s injuries is his parent, is a statement of identification reasonably pertinent to diagnosis or treatment, making statements of identification admissible? These were the questions that the Court of Appeals of Texas recently addressed in Weeks v. State, 2009 WL 1325461 (Tex.App.-Hous. [14th Dist.] 2009).

In Weeks, James Richard Weeks appealed from his conviction on two counts of aggravated sexual assault of a child. Weeks was convicted in part based upon the testimony of Dr. Reena Isaac, who treated Weeks’ six year-old  son, whom Weeks allegedly sexually assaulted. According to Dr. Isaac, when she asked the son why he was there, he replied “[b]ecause my dad did something bad to me.” The trial court found that Dr. Isaac could render this testimony because the son’s statements constituted statements made for purposes of medical treatment or diagnosis under Texas Rule of Evidence 803(4). After he was convicted, Weeks appealed, claiming that this ruling was erroneous.

Weeks’ first argument on this front was that his son was too young to understand the consequences of lying to Dr. Isaac, making his statements unreliable and not qualified for admission under Texas Rule of Evidence 803(4). The court disagreed, noting that in Fleming v. State, 819 S.W.2d 237, 247 (Tex.App.-Austin 1991), the Court of Apeals of Texas found that a four year-old child appreciated the need for veracity when she made statements identifying her abuser to a pediatrician. Based upon this precedent, the court in Weeks concluded:  “We disagree with appellant’s argument that the complainant, who was six years old at the time of evaluation, could not have appreciated the need to be truthful because of his youth.”  

Weeks’ second argument on this front was that his son’s statement identifying him as his assailant was inadmissible because generally Texas Rule of Evidence 803(4) only allows for the admission those portions of a patient’s statements describing the “general character of the cause or external source” of his injury or illness and does not allow for the admissions of those portions describing the identity of the person causing the injury or illness, if applicable. However, relying upon Fleming as well as its prior opinion in Bargas v. State, the court found that “[a] child sexual assault complainant’s statement identifying his or her abuser is admissible under Rule 803(4) and pertinent to medical treatment because the treatment of child abuse includes removing the child from the abusive setting.” The court thus affirmed Weeks conviction, and in my opinion, it did so correctly.

-CM