GARZA v. STATE (2025)

OPINION

A jury convicted appellant, Nathan Gerardo Garza, of the first-degree felony offense of continuous sexual abuse of a child and the trial court assessed his punishment at twenty-five (25) years in prison. Appellant challenges his conviction raising three issues: first, whether there was evidence sufficient to support his conviction despite evidence to the contrary; second, whether the trial court erred in permitting a police officer to testify as an outcry witness; and third, whether the trial court erred in allowing a police officer to offer opinions on the credibility of appellant during his recorded interview. Although we affirm the judgment today, we draw the State's attention to our discussion of appellant's third complaint. We condemn the use of law enforcement personnel to act as experts on credibility and urge trial courts to prohibit the introduction of such evidence.

I. Factual and Procedural Background

The State charged appellant for the felony offense of continuous sexual abuse of his then thirteen-year-old stepdaughter, Artemis.¹ Appellant pleaded not guilty to the charged offense.

At his trial, the State presented its evidence against appellant through the testimony of family members, law enforcement officers, and social workers and health care professionals.

The State's case was based on Artemis's allegations that appellant made her have sexual intercourse (penile-vaginal penetration) with appellant on three specific dates spanning a period longer than thirty days from January to March of 2021 while she was living with him, her mother (Samy), and her half-brother (Xeno) in a double-wide trailer home in Galveston County. On the third occasion, appellant was also alleged to have first forced Artemis to perform oral sex on him. Deputy Savage, who picked Artemis up in response to a 9-1-1 call, testified as an outcry witness roughly describing the acts and timeframes of these occurrences reported by Artemis, and Shanda Morand, who interviewed Artemis at the Advocacy Center for Children of Galveston County (CAC) several days later, also testified as an outcry witness, but in greater detail.

Artemis's mother, Samy, also designated as an outcry witness, testified that she was not sure Artemis was telling the truth when she first blurted out in the family room that appellant had “taken her virginity.” Though Samy followed up with Artemis at the time, she could not testify to any other details of Artemis's report. When asked at trial if she believed Artemis's allegations were truthful, she responded: “I don't think so. I don't think she is. Like I said, I don't believe [appellant] can do something like that.”

The State called one detective to testify about her investigation of Artemis's allegations and how the investigation progressed, including interviews taken of appellant and other family members. Later, the State called another detective who provided opinions that appellant was lying based on his background and experience and observations of appellant during his recorded interview.

Appellant's younger stepsister, Lucy, was called to testify about the family and household events at the time of the alleged offense. She corroborated facts described by Artemis surrounding the third sexual assault.

The jury found appellant guilty as charged in the indictment, and the trial court assessed appellant's punishment at 25 years in prison.

II. Sufficiency of the Evidence

In his first issue, appellant challenges the sufficiency of the evidence to support his conviction of continuous sexual abuse of a young child. See Tex. Pen. Code § 21.02.

A. Standard of Review and Relevant Law 2

In evaluating a challenge to the sufficiency of the evidence supporting a criminal conviction, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury “is the sole judge of the credibility of the witnesses and of the strength of the evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the jury resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

We measure sufficiency to support a conviction by comparing the evidence presented at trial to “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge reflects the governing law, the indictment, the State's burden of proof and theories of liability, and an adequate description of the offense for the particular case. Id.

To prove that a person is guilty of continuous sexual abuse of a child, the State must prove the following elements: (1) the defendant “commit[ted] two or more acts of sexual abuse” (2) “during a period that is 30 or more days in duration,” and (3) “at the time of the commission of each of the acts of sexual abuse, the [defendant was] 17 years of age or older and the victim [was] a child younger than 14 years of age.” Tex. Penal Code Ann. § 21.02(b).

“Acts of sexual abuse” are listed in the statute and, as relevant here, include aggravated sexual assault. Tex. Penal Code Ann. § 21.02(c) As pertinent to the offense charged and presented to the jury, in this case a person commits aggravated sexual assault if he intentionally or knowingly causes the contact or penetration of the mouth of a child by the sexual organ of the actor or causes the sexual organ of a child to contact or penetrate the sexual organ of another person, including the actor. See Tex. Penal Code Ann. § 22.021(a)(1)(B), (a)(2)(B). Although the exact dates of the acts of sexual abuse need not be proven, the offense requires proof that two or more acts of sexual abuse occurred during a period of thirty days or more. See Tex. Penal Code Ann. § 21.02(d). Proof of any two acts constituting the offense of aggravated sexual assault during a period that was thirty or more days in duration satisfies the act-of-sexual-abuse element required in the continuous sexual assault of a child statute.

The testimony of a child victim alone is sufficient to support a conviction for continuous sexual abuse of a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a); Pena v. State, 714 S.W.3d 214, 224 (Tex. App.—Houston [14th Dist.] 2024, no pet.); see also Gutierrez v. State, 585 S.W.3d 599, 607 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (“The complainant's testimony, standing alone, is sufficient to support appellant's conviction for continuous sexual abuse of a young child.”). Similarly, outcry testimony admitted as substantive evidence need not be corroborated or substantiated by the victim or independent evidence to serve as sufficient evidence to support the conviction. See Eubanks v. State, 326 S.W.3d 231, 241 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd); Johnson v. State, No. 14-21-00465-CR, 2022 WL 16645512, at *1 (Tex. App.—Houston [14th Dist.] Nov. 3, 2022, pet. ref'd) (mem. op.) (“The testimony of the outcry witness was sufficient by itself to support both of appellant's convictions.”).

B. Is appellant's conviction for the offense of continuous sexual abuse of a young child supported in the trial record by legally sufficient evidence?

Shanda Morand, a forensic interviewer at the CAC, interviewed Artemis on March 31, 2021. Moran testified that Artemis described three sexual encounters with appellant: the first, in late January, just after her brother's third birthday; the second, the middle of February (during or after the harsh freeze around Valentine's Day), and the last time, in the middle of March, the first weekend of Spring Break.

Ms. Morand explained that Artemis reported that, on the first occasion, appellant told her to take a shower and shave the hair around her vagina. Artemis recalled to Morand that she had responded that her mother should be the one to tell her do that, but appellant said that her mother would not be doing that. Artemis said that she took a shower and that she was only wearing a shirt. Artemis said that appellant then had her go to the bedroom, lie on the edge of the bed, and prop her legs up, and appellant put his penis in Artemis's vagina. Artemis said that, during this assault, her little brother was taking a nap. Morand conveyed that unique to the first time, when appellant finished assaulting her, Artemis told her that he ejaculated onto her abdomen.

Morand related Artemis's report of the details about a second assault, which in many ways occurred like the first; the same physical act of penis-vagina penetration, at her home in her parent's bedroom, on the edge of the bed. But Morand also described distinctive facts Artemis gave about events leading up to, during and after the second act that were different from the first act.

Morand testified that Artemis reported that leading up to the third occasion, appellant repeatedly told Artemis that she needed to suck his penis or give him a “blow job” because she needed to learn how to do that, so that she could “make money” in the future. According to Morand, Artemis said that she repeatedly refused, but appellant eventually forced the situation, that he made her go to his bedroom, get down on her knees and put his penis into her mouth. Morand testified as Artemis explained it to her—“it felt like it would feel if somebody was like shoving food in your mouth and you didn't want the food in your mouth.” Artemis said that she used her teeth, that this upset appellant, so he moved her to the bed. Morand explained that Artemis said that appellant again put his penis into Artemis's vagina, but on this third occasion, the assault hurt her very badly for several hours because her vagina was dry. Artemis said that, after this assault, she went outside in order to calm down.

Morand's outcry witness testimony alone served as sufficient evidence to show that, during a period that was 30 or more days in duration, appellant committed at least two acts of sexual abuse against Artemis, who was younger than 14 years of age. See Tex. Penal Code § 21.02(b). See also Pelcastre v. State, 654 S.W.3d 579, 584-85 (Tex. App.—Houston [14th Dist.] 2022, pet. ref'd).

Under his first issue, appellant argues that Artemis's statements that appellant took her virginity “contrasts directly with state-introduced medical evidence.” We disagree with appellant's view of the evidence. Appellant refers to testimony from nurse practitioner Maylin Gerardo-Lopez, a child abuse specialist at the ABC clinic of UTMB Galveston, who evaluated Artemis in her medical exam. Gerardo-Lopez discussed her physical examination of Artemis. She testified there were no signs of trauma to Artemis's labia or hymen. Ms. Gerardo-Lopez noted that Artemis's hymen was thicker than usual. Ms. Gerardo-Lopez did not examine the vaginal wall or cervix. She noted that these tissues heal quickly. Gerardo-Lopez explained that the absence of signs of trauma did not mean that Artemis was not sexually assaulted. Gerardo-Lopez testified that what Artemis reported to Ms. Gerardo-Lopez supported a diagnosis of sexual abuse. Appellant presented no witness or other evidence at trial to support the medical argument he attempts to make on appeal by way of reference to medical journals and inapposite court holdings.

Appellant also complains of the State's failure to present “any scientific evidence against Mr. Garza that sexual abuse had ever occurred: no DNA, no fingerprints; there was no sperm, no blood, no bruises, no scratches nor other evidence of bodily trauma nor was there any damage to her clothing.” However, a legal sufficiency review does not require a particular form of evidence, including the presentation of physical evidence to support a judgment. Pena v. State, 441 S.W.3d 635, 641 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) (absence of DNA or fingerprint evidence not required to support conviction in murder trial); Ponce v. State, No. 01-18-00224-CR, 2020 WL 3422289, at *3 (Tex. App.—Houston [1st Dist.] June 23, 2020, pet. ref'd) (mem. op.) (not designated for publication) (noting in appeal of continuous sexual abuse of a child conviction that physical evidence not required); Torres v. State, No. 14-22-00275-CR, 2023 WL 4783535, at *4 (Tex. App.—Houston [14th Dist.] July 27, 2023, pet. ref'd) (mem. op.) (not designated for publication) (collecting cases).

Appellant does not challenge Morand as an outcry witness, and her testimony alone provided proof of the three separate sexual assaults occurring over a 30-day period. Her testimony was not contradicted in any significant manner, and the facts she provided on the essential elements were reiterated by multiple other witnesses, including Artemis. Under the applicable standard of review, the State presented legally sufficient evidence that appellant committed the offense of continuous sexual abuse of his stepdaughter, Artemis. See Pelcastre v. State, 654 S.W.3d at 584-85; see also Gutierrez v. State, 585 S.W.3d at 607; See Eubanks v. State, 326 S.W.3d at 241.

We therefore overrule appellant's first issue.

III. Outcry Witness Testimony

In his second issue, appellant asserts the trial court reversibly erred in allowing Detective Savage to testify as an outcry witness because, as appellant argues, his testimony merely operated to bolster Artemis's “unimpeached testimony.” See Tex. Code Crim. Proc. art. 38.072 (the “outcry statute”; providing an exception to the hearsay rule applicable to the prosecution of certain sexual offenses against children for the admission of a child's first outcry of sexual abuse to an adult, i.e. the outcry witness). In response, the State argues that at the pretrial hearing to determine the propriety of the State's outcry witnesses, appellant's trial counsel first objected but subsequently abandoned his challenge (by stating “no objection”) and waived the objection to the State's outcry witnesses. We first address the State's waiver argument.

A. Waiver standards applicable to declaring “No objection”

The question whether a party has abandoned a previously-lodged objection is treated differently than the more routine question as to whether a party lodged and preserved an objection in the first instance. See e.g., Washington v. State, 567 S.W.3d 430, 441–42 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd). “[W]hen assessing the meaning of an attorney's statement that he or she has ‘no objection’ in regard to a matter that may have been previously considered and ruled upon, courts should first ask whether ‘the record as a whole plainly demonstrates that the defendant did not intend, nor did the trial court construe, his “no objection” statement to constitute an abandonment of a claim of error that he had earlier preserved for appeal.’ ” Stairhime v. State, 463 S.W.3d 902, 906 (Tex. Crim. App. 2015) (quoting Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim. App. 2013)). If, after applying the test, it remains ambiguous whether abandonment was intended, then we must resolve the ambiguity in favor of finding waiver. Id.; see also Washington v. State, 567 S.W.3d at 441–42.

B. The Outcry Hearing and Facts Pertinent to the State's Waiver Argument

Before trial, the State informed the trial court that, in addition to Artemis's mother, the State intended to present Deputy Savage and the forensic interviewer, Ms. Morand, as outcry witnesses. Appellant's trial counsel secured a hearing to challenge the State's outcry witness designations. At the hearing, appellant's trial counsel argued that the proper outcry witness was Artemis's mother but acknowledged that Deputy Savage “was the first adult that she went into details with.” The State, likewise, acknowledged that Artemis made some statements to her mother, but they were very general, and no details were given.

At the pre-trial hearing, Deputy Savage testified that, to his knowledge, he was the first adult to whom Artemis reported the details of her allegations against appellant, but agreed that Artemis told him that she had also told her mother. According to Savage, Artemis said that she was not able to tell her mother completely what appellant had done to her. Deputy Savage testified that Artemis identified three instances in which appellant molested her, but she was vague about what happened during each instance. He testified that Artemis reported a chronology of abuse, but did not go into significant detail as to each instance of abuse, stating that the first instance occurred in late January, and that the second instance occurred in February near Valentine's Day. He testified the last incident occurred about two weeks before March 25, the date he took her statement outside the fire station. Deputy Savage testified that Artemis did not go into detail regarding what happened during each of the three instances.

Shanda Morand testified that, to her knowledge, she was the first person that Artemis told in detail about the specific acts that appellant committed against her.

After the testimony of these two witnesses, defense counsel stated that she had no objection to Deputy Savage being an outcry witness because he was the first adult to whom Artemis gave specific details. Defense counsel also stated that “anything she said different or more detailed to the CAC investigator, is potentially an outcry. So I've no objections to what she said different and I ․ have the ability to cross examine her on what she said previously, or before.” Defense counsel stated, “I will leave it at the discretion of the Court on the CAC investigator only because some details are more specific. She goes into more detail and we have to go under both different interviews, but that is my position, your Honor.”

With regard to Artemis's mother being a proper outcry witness, the State argued that an outcry witness must provide “more than mere words, which give a general allusion that something in this area of child abuse was going on.” She argued that, “For a statement to qualify as an outcry, the record must show the child described the allegation in some discernable manner,” and that Artemis's mother would not be able to testify to that. The trial court clarified, “It appears that [defense counsel] is not objecting to the mother, Deputy Savage or Kim Morand on different details; is that correct?” and defense counsel replied, “That's correct, your Honor.” Because Artemis's mother had not yet testified, the court clarified its intermediate ruling—“So that will be the ruling at least on Savage and Morand, and we'll need to hear from [Samy] in some form of hearing before I can allow her testimony.” Then Artemis's mother testified.

Samy explained that Artemis made her outcry while she was in the living room of their home with appellant. Artemis specifically said that appellant “took her virginity,” but did not elaborate. Samy testified that, to her knowledge, she was the first person to whom Artemis made the allegations of sexual abuse against appellant. Following Artemis's mother's brief and limited testimony, appellant's trial counsel passed on asking any questions of her own “regarding the 38.072 hearing.” The trial court then asked, “do you have any objection to admissibility of her statement?” Appellant's trial counsel responded: “No, your Honor.”

The trial began and the State called each of the three outcry witnesses, who testified without the objection that such testimony was impermissible hearsay outcry testimony or duplicative of any other outcry witness.

C. Did appellant abandon objection to what he complains of on appeal—the admission of Detective Savage's outcry witness testimony?

Taking appellant's trial counsel's concessions and other statements at the hearing in context with the entire record, appellant's trial counsel plainly indicated to the court that he did not object to the designation of each of the three witnesses as outcry witnesses on “different details.” Additionally, appellant's trial counsel conceded that Deputy Savage was a proper outcry witness because he was the first adult to whom Artemis gave specific details. While the sequence of the witness testimony did not follow the chronology, we cannot conclude that, after Artemis's mother testified at the hearing, when appellant's trial counsel indicated he did not object to Artemis's mother as an outcry witness that this, without further objection or explanation, simultaneously operated to undo his prior concessions with respect to Savage (and Morand). Even construing the record as showing that appellant's counsel reserved a right to raise outcry related objections (e.g., about redundant testimony of the same events, offenses, and details) after the trial commenced on the basis of the developing record, appellant never exercised that right at trial. Because the record shows that appellant's trial counsel abandoned his objection to the designation of Deputy Savage, we hold the issue was waived for appellate review. Washington v. State, 567 S.W.3d 430, 441–42 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd).³

Appellant's second issue is overruled.

IV. Credibility Expert Testimony

In his third issue, appellant argues that the trial court reversibly erred when it permitted Detective Remmert to testify, based on his training and experience, that appellant was lying during his recorded interview.

A. Standard of Review and Relevant Legal Standards

A trial court's decision to admit or exclude evidence is reviewed under an abuse-of-discretion standard. See Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Beham, 559 S.W.3d at 478; Gonzalez, 544 S.W.3d at 370.

A person with specialized knowledge may testify about his or her own observations under Rule 701 and may also testify about the theories, facts and data used in his or her area of expertise under Rule 702.” Osbourn v. State, 92 S.W.3d 531, 536 (Tex. Crim. App. 2002) (“A witness may qualify to give testimony both under Rule 702—because of his or her superior experiential capacity—and under Rule 701, if the witness's testimony and opinion are based upon firsthand knowledge.”). A witness may testify to his perceptions of events that he personally observed or experienced. See Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997). Perceptions include a witness's interpretation of information acquired through his own senses or experiences at the time of the event. See Williams v. State, 402 S.W.3d 425, 436 (Tex. App.–Houston [14th Dist.] 2013 pet. ref'd) (citing Osbourn, 92 S.W.3d at 535). Permissible testimony, drawn from the witness's own observations or experiences, can include opinions, beliefs, or inferences. Id.

Evidence showing that an accused was deceptive during an investigation is relevant and admissible. See Oliva v. State, 942 S.W.2d 727, 732 (Tex. App.—Houston [14th Dist.] 1997, pet. dism'd). However, an expert is not permitted to give a direct opinion on the truthfulness of a witness. See Yount v. State, 872 S.W.2d 706, 709-10 (Tex. Crim. App. 1993). Such testimony is inadmissible “because it does more than ‘assist the trier of fact to understand the evidence or to determine a fact in issue;’ it decides an issue for the jury.” Id. at 709 (emphasis in original) (quoting Duckett v. State, 797 S.W.2d 906, 910, 913 (Tex. Crim. App. 1990)). Similarly, a witness's expert opinion on the truthfulness of a criminal defendant during an investigation is also inadmissible. See Brown v. State, 580 S.W.3d 755, 764–65 (Tex. App.—Houston [14th Dist.] 2019, pet. ref'd) citing Gonzalez v. State, 301 S.W.3d 393, 398 (Tex. App.—El Paso 2009, pet. ref'd) (concluding that testimony of expert was impermissible opinion on truthfulness of defendant's statement). This rule equally applies to expert and lay witness testimony. See Brown v. State, 580 S.W.3d at 764, citing Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd).

B. Relevant Procedural Facts

Shortly after Detective Merle Remmert took the stand and it was established that Remmert participated in the interview of appellant before charges were filed against him, the State began to ask Remmert about his knowledge of “signs of deception.” When appellant's trial counsel objected that Detective Remmert was “not qualified,” the state responded that through Remmert's training and experience, “he's developed a feel to be able to tell when people are being honest in an interview and he should be able to testify as to what those generally are.” The judge sustained appellant's trial counsel's immediate objection but encouraged the trial prosecutor to lay the foundation for such testimony.

Detective Remmert testified that he received training in interrogating suspects and had conducted many interviews since becoming a police officer in 1996. Remmert testified that he went to the Kinesic interviewing school in 2016 and a behavior analysis interviewing school in 2019, and that since then, he had often implemented what he had learned in his own interviewing. Before Remmert continued, the trial court announced that the “foundation had been laid” and it would overrule appellant's objection. Appellant's trial counsel then asserted a battery of additional objections:

․ I'm going to re-urge my objection because his testimony is being used to -- in reference to a video where he is acting like a lie detector, and I think that is inadmissible. It's not relevant. And he is no expert in deception. He has no qualifications, no certificates of being a lie detector or having any skilled training in deception since 2016, if there was any training.

Without making an explicit ruling on any of the objections, the trial judge encouraged the prosecutor to “go a little further into those areas to see if you could meet those objections,” then shortly thereafter summarized appellant's objection, “I think the objection is specific training in the area of inquiry, that being as an investigative technician recognizing signs of potential deception. That's the area that needs to be established.” Remmert explained that learning Kinesic interviewing taught him “how to read body language and facial expressions, micro expressions and things like that, body movement” and that the 2019 class dealt with “the way suspects respond to you and respond to certain stimuli that you provide in conversation.” Again, Remmert testified that he had used the “techniques” learned at these trainings on many occasions, including “in this case.” He then went into detail about what he looks for:

Q Based on these trainings and your experience using them, what kind of body language are you looking for in an interview?

A I'm looking for people who either stare directly into my eyes and don't break contact or people that won't look at me, things that are abnormal, and looking for people that will stiffen their body up and hold tight with their top body so that I don't see movement. But the energy that they have ends up being dispelled, and you'll see movement through the feet and legs. Typically suspects will occasionally point their feet toward the door if they are nervous and trying to get out and hoping to leave. It's just -- it's different for every person, basically. But it basically boils down to nervous energy leaving the body. And somehow or another that energy has got to leave and you'll find it in tics and repetitive actions and anything like that. You're just looking for things that are abnormal at that point.

Q Are there any other examples that you can think of?

A Sure. Directly relating, people that are, say, a gum-chewer. That is, chewing gum, that is not abnormal, but when they get nervous and they are trying to dispel their energy, they will start chewing on the gum like crazy. You will see that as a way to expel energy.

I've seen people sit and just basically lock their arms to the arms of the chairs and hold onto their hand in front of them so they aren't moving. Nervous energy in the way of shakes are invisible to the interviewer, they think. There is just a lot of ways for that to occur. Like I said, it's different for every single person.

Q Do people sometimes, when trying to be deceptive, they will give an answer in the affirmative but shake their head in the negative?

A Absolutely. That is a subconscious response. Their mouth is saying one thing and their brain is saying something else and they can't separate those two actions.

In a brief voir dire of Remmert, appellant's trial attorney asked if Remmert had ever testified based on his expertise in human deception, and Remmert insisted that he was not an expert. This prompted appellant's counsel to again object to Remmert's testimony. The court then followed with the instruction, “Ladies and gentlemen, I'm going to instruct you, as to the testimony you've heard, will be considered in the context in which it was given, that being the experience of this particular officer, his training, and his experience, but not as an expert.”

The State then played the video of appellant's interview to the jury and asked Remmert questions about signs of deception appellant exhibited in the interview:

Q. So we just watched that video. Based on your training and experience as a detective in interviewing suspects, in the course of that video, did you notice any signs of deception?

A I did.

Q Which ones in this specific video did you notice?

A The first major sign was Lieutenant Miller asked him a question about -- he answered “no” but nodded “yes” when she asked him.

Q And I will sort of skip ahead on the video here to, I believe, 27:39. I believe this is about that time. I'll play that now.

Q (By Mr. Rinehart) Pausing the video at 28:11. Is that what you were referring to?

A Yes.

Q Were there any others?

A There were times that he became rigid while we were talking to him. You really can't see it on the video because of the placement of the desk. And he was -- when Lieutenant Miller was again questioning him, kind of accusing him, he started chewing on his gum like crazy. I mean, he had been casually chewing on it through the deal, but once she got to the accusing him, he started chewing on it like crazy.

He made some statements in the video that also made me stop to think -- like when he was talking about the scars, she said something about, you know, her, the victim, not being able to possibly identify him because maybe not looking at them and --

The pertinent objection for purposes of our review follows from appellant's objection that “he is acting like a lie detector, and I think that is inadmissible.”

C. Did the trial court err when, over appellant's objections, it permitted the State's witness to offer opinion testimony based on his training and experience about appellant's general credibility and truthfulness during his recorded interview?

The State champions Sifuentes v. State because, if applied to our case, the trial court arguably did not err in allowing Remmert's testimony. As it considered whether Mr. Sifuentes was disadvantaged when his attorney failed to object to the officer's credibility testimony, the court considered whether an objection would have gained him anything:

The officer personally interviewed appellant, and a video of the interview was played for the jury. The officer's testimony that he did not believe appellant was being truthful regarding the use of a gun is a permissible belief drawn from his personal experiences as an officer and his observation of appellant during the interview. Accordingly, the evidence was admissible. Trial counsel's failure to object to admissible evidence does not constitute ineffective assistance of counsel. See Ex parte Nailor, 105 S.W.3d [272, 278 (Tex. App.—Houston [14th Dist.] 2003)].

Sifuentes v. State, 494 S.W.3d 806, 812–13 (Tex. App.—Houston [14th Dist.] 2016, no pet.). We do not disparage the ultimate holding (underlined above), nevertheless, today, we decide not to convert Sifuentes’s hypothetical evidentiary holding (in bold) into a direct holding of law on today's evidentiary issue. And although we do not reconsider whether any sources cited in Sifuentes directly support the hypothetical evidentiary holding in that case, we note that none of the cases cited in that case support the proposition as applied to the facts of current case—that a trial court should allow, over objection, an officer's expert credibility opinion testimony about a defendant in a recorded interview.

Remmert's testimony is too overtly problematic; he is a law-enforcement officer called by the State as a witnesses exclusively for the purpose of providing credibility opinion about the defendant, based on his specialized training in interrogation techniques and experience interviewing witnesses.

The first problem with the court's admission of Remmert's testimony was that, despite both Remmert's own statements that he was not an expert and the court's instruction that he not be considered an expert, when the court instructed the jury to regard his opinions in light of his particular experience and training, it effectively promoted his opinions to expert status. Indeed, the very definition of an expert is a “witness who is qualified as an expert by knowledge, skill, experience, training, or education.” Tex. R. Evid. 702. In closing arguments, the State argued that Detective Remmert was asked to evaluate appellant's credibility because of his “expertise and his technical training.”

The State's use of an officer exclusively to offer opinions about the accused's credibility based on experience and training in the soft science of forensic interrogation poses the same reliability problems as a polygraph operator. That is, we fail to appreciate how most aspects of his methodology, such as monitoring eye-contact, body rigidity, foot-placement and gum-chewing speed, are so different from and superior to the physiological monitoring done by a polygraph—which has been deemed legally unreliable for purposes of a criminal prosecutions for five decades. See Leonard v. State, 385 S.W.3d 570, 581 (Tex. Crim. App. 2012) (recalling cases to illustrate [then]-39 years of consistent holdings on the court's position with respect to the science and jurisprudence surrounding polygraph examinations); Nesbit v. State, 227 S.W.3d 64, 66 n.4 (Tex. Crim. App. 2007) (where the State filed a motion to revoke community supervision based on failing a polygraph examination, the court noted in dicta that “[n]either the results of a polygraph test nor the ‘fact’ of failing a polygraph test are admissible in a Texas criminal proceeding.”).

Remmert's stated methodology or technique with respect to eye contact, (e.g., “I'm looking for people who either stare directly into my eyes and don't break contact or people that won't look at me”), presented particularly undesirable potential consequences; allowing him leeway to testify about an interviewee's credibility within a “Tails I win, Heads you lose” framework.⁴ Under this fool-proof methodology, Remmert or any police officer that takes the required courses could have taken the stand having not participated in the interview, testified about this training and background, applied this “technique” to any recorded interview of any witness and provided the same opinion—e.g., expert's template: [Expert looks to the members of the jury or not, depending, and says:] “this witness, you see, this defendant is a lying liar who lies because he [choose one: [“was”] or [“wasn't”]] looking me in the eyes].

Similarly, while it is true that a person nodding “yes” while simultaneously verbally answering “no,” indisputably makes contradictory expressions, and that is a fair observation of any witness, the court permitted Remmert, with the elevated status afforded by his training and experience, to translate for the jury that appellant's verbal expressions were lies, not the non-verbal ones. By permitting Remmert to testify and provide opinions based on this observation based on his particularized training and background, the court placed his opinions on appellant's credibility a notch above everyone lacking that particularized training and background, i.e., any given juror, and this was improper. See Yount v. State, 872 S.W.2d at 709.

We conclude the trial court acted outside the zone of reasonable disagreement by allowing testimony exclusively devoted to conveying the opinion that appellant was a liar in his recorded interview, because his methodology was unreliable, see Nesbit v. State, 227 S.W.3d at 66 n. 4, and because his testimony was offered to decide the credibility issue for the jury based on his unique training and experience rather than assist them to understand the evidence or to determine a fact in issue. See Yount v. State, 872 S.W.2d at 709-10. Now, we consider whether the trial court's error is reversible error.

D. In light of the entire trial record, was the trial court's error in this case, when it allowed the State's witness to offer credibility opinions about appellant, an error that affected appellant's substantial rights?

The erroneous admission of expert testimony is non-constitutional error. See Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). Such errors must be disregarded unless it affected appellant's substantial rights. Tex. R. App. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011).

A substantial right is affected when the error had a substantial and injurious influence on the jury's verdict. Coble, 330 S.W.3d at 280. In making this determination, we may consider, among other things: (1) the strength of the evidence of the defendant's guilt; (2) whether the jury heard the same or substantially similar admissible evidence through another source; (3) the strength or weakness of an expert's conclusions, including whether the expert's opinion was effectively refuted; and (4) whether the State directed the jury's attention to the expert's testimony during arguments. Brown v. State, 580 S.W.3d 755, 765-66 (Tex. App.—Houston [14th Dist.] 2019, pet. ref'd). “Even in cases in which credibility is paramount, Texas courts have found harmless error when the inadmissible expert testimony was only a small portion of a large amount of evidence presented that the jury could have considered in assessing [ ] credibility.” Barshaw, 342 S.W.3d at 96.

The fourth factor above is the most favorable to a finding of harm. As noted in discussing error above, the prosecutor drew particular attention to Remmert's testimony during the second part of the State's closing argument. The prosecutor both propped up Remmert's credentials and recalled the “signs of deception” that Remmert had defined for the jury, such as nervous body movement and gum-chewing speed.

Regarding the first factor, the evidence of appellant's guilt at trial was significant. As discussed above, the outcry testimony provided from Morand alone surpassed what was necessary to demonstrate legally sufficient evidence. Yet still, Artemis's own testimony was likely more powerful to the jury. She gave specific details about each of the three incidents, providing distinctive facts of when, where, and how the sexual assaults occurred. Artemis conveyed to the jury her recollection of unusual sexually charged statements appellant repeatedly made that aimed to coerce her to perform sexual acts, and that he made threats to her life to ensure her silence and told her that her mom would take her own life if she persisted in accusing him. Her step-sister's testimony assisted to corroborate Artemis's factual account of the third encounter with appellant. Savage's and Morand's outcry testimony showed that Artemis's story remained consistent as she retold it.

With respect to the second factor, the jury heard other evidence in connection with the credibility of the accused. Among the evidence admitted at trial most similar to the erroneously admitted evidence, Officer Remmert made various similar credibility remarks during the course of the recorded interview. At multiple instances, Remmert told appellant that he was not being truthful. Appellant's trial counsel made no comparable effort to challenge the admission of Remmert's comments in the interview, and he does not challenge them on appeal. Detective Miller however testified that appellant was “cooperative,” “willing to make a statement,” and “didn't make any admissions or anything like that.” Miller testified that appellant had become somewhat combative towards the end of the interview, but she likewise described Remmert's interrogation techniques as “confrontational” and noted he can “get a little angry sometimes” when trying to draw out statements from the defendant.

Regarding the third factor, although appellant did not have his own competing credibility witness, his trial counsel effectively cross-examined Remmert on a number of points, including the shallow depth of his methodology:

Q. He shook his head, he was rigid, and chewed his gum, and that makes him a liar?

A. I felt that he was being deceitful.

Q. I'll ask you again: What facts do you believe he was being deceitful on?

A. The answers he was giving Lieutenant Miller.

Q. The answer to everything he gave her was a deception?

A. For the most part in that he was mostly deceptive, yes.

Q. But you just said you didn't know any of the facts of the case, so how do you know what he's saying is true or not?

A. Just in watching his body language and the way he's speaking.

Although we can only speculate how the jury received Remmert's testimony, there is a fair likelihood some jurors would find Remmert biased, that his methodology questionable as he described it, flawed based on what he “felt,” and lacking an appearance of being scientific. Additionally, appellant generally appeared confident in the interview, at times much calmer than Remmert, and as detective Miller noted, he did not make any admissions.

Finally, we note that the State did not draw significant attention to Remmert's opinions during its closing statements and opted to focus on the fact-witness testimony.

Summary of Harm Analysis

The trial court erred in letting Remmert tell the jury that Garza was deceptive or “not truthful.” The prosecution pushed that error to the edge of harmful with their unobjected to closing argument about Remmert's testimony. On the entirety of this record, though, the error is harmless. Hankins v. State, 180 S.W.3d 177, 182 (Tex. App.—Austin 2005, pet. ref'd) (finding error in admission of prior conviction was harmless even when the state reminded the jury of the prior conviction during closing argument); Lee v. State, No. 14-23-00884-CR, 2025 WL 480828, at *6 (Tex. App.—Houston [14th Dist.] Feb. 13, 2025, no pet.) (mem. op.) (not designated for publication) (under the same harm standard, finding charge error harmless despite the State “fanning the flames” during closing argument). The jury watched the interview during the testimony. They could judge appellant's demeanor for themselves. The court immediately told the jury that Remmert was not an expert and to treat his comments as lay observations. The defense forced Remmert to admit he was not an expert, did not know the facts of the case, and could not say which of Garza's statements were false. Given the detailed testimony from the complainant and outcry witnesses along with the written jury instructions on their “exclusive” role in determining credibility, we have fair assurance the improper opinions did not influence the verdict or had but slight effect. Brown v. State, 580 S.W.3d 755, 765-66; see also Hickman-Staudt v. State, No. 14-23-00840-CR, 2025 WL 1833395, at *1 (Tex. App.—Houston [14th Dist.] July 3, 2025, no pet. h.) (mem. op.) (not designated for publication). We must caution though, this was close. Nothing in this holding should be seen as a green light for testimony on “signs of deception” tied to a defendant's denials or for closing arguments that such opinions reveal “the real truth.” Playing the interview is fair but narrating with “he's lying” is not. In cases where credibility is the driving issue, this tactic risks a different outcome. Going forward, trial courts should confine officers to what they actually observe under Texas Rules of Evidence 701, such as gestures, pauses, tone, and exclude an opinion that a witness is lying or “not truthful.” Stick with observations not diagnosis. The error is harmless here only because of the strength of the admissible proof. In a closer case this same conduct will warrant reversal.

Appellant's third issue is overruled.

V. Conclusion

Having overruled each of appellant's three issues, we affirm the judgment of the trial court.

FOOTNOTES

1.   Because Artemis was a minor at the time of the alleged offense we will refer to her and her family members by pseudonyms. Tex. R. App. P. 9.8 & 9.10.

3.   In discussing the parties’ representations and concessions to the trial court for the purpose of evaluating whether appellant abandoned his complaint, this opinion should not be construed as endorsing any particular construction of the outcry statute.

4.   At least one reasonable interpretation of his testimony was that under his methodology both a witness who looks directly into his eyes without breaking eye contact and one who refuses to make eye contact or regular eye contact could be interpreted to be exhibiting signs of deception.

Randy Wilson, Justice