Weekly Case Summaries: July 16, 2010

Texas Courts of Appeals

Hernandez v. State - 3rd COA (Unpublished)

07/13/10 : Cite No. 03-08-00795-CR

Issue:

Were the statements made by the 8-year-old victim of sexual assault to her doctor during the medical examination properly admitted under TRE 803(4) as statements made for the purpose of medical diagnosis?

Holding:

Yes. While the doctor did not testify that the child understood the importance of being truthful, the court could not find that as a matter of law a child this age is too young to appreciate the need to be truthful when speaking to a doctor about physical or sexual abuse. Read Opinion.

Commentary:

This is not a published opinion, but it raises what continues to be an important issue: how to make sure medical professionals can testify under the medical hearsay exception as to the details of sexual abuse provided by a patient who happens to be a child. The opinion suggests that the prosecutor should ask a few more questions that clearly establish the child is capable of understanding the need to provide truthful information relevant to medical care. This requirement is particularly important when the medical professional is a sexual assault nurse examiner, rather than a pediatrician, as used in this case. Use this case to help train those medical professionals.

Texas Attorney General

Request for Opinion from Senfronia Thompson, Chair of the House Committee on Local & Consent Calendars

07/07/10 : Request Number RQ0898GA

Do charities that redeem prize winnings from "amusement machines" with bingo merchandise comply with Chapter 2001 of the Occupations Code and other applicable gambling laws? Read Request.

Commentary:

Like the swallows at Capistrano, we can mark the arrival of another legislative season with yet another proposal for an exception to the gambling law, especially as it applies to those darned amusement machines.

 

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