GOMEZ v. STATE (2026)

OPINION

A jury found appellant guilty of sexual assault of a child and assessed punishment at five years’ confinement. In four issues, appellant contends that the evidence is legally insufficient, the trial court erred by overruling an objection to the qualification of an expert, the trial court erred by overruling an objection to the expert's testimony about “grooming,” and appellant's trial violated due process. We affirm.

I. Sufficiency of the Evidence

In his first issue, appellant contends that the evidence is legally insufficient because no jury could find guilt beyond a reasonable doubt when (1) the complainant “admitted that she could not remember the incidents of which she was accusing appellant”; (2) the mother delayed reporting the complainant's outcry for a year while allowing the complainant “to be exposed to continual instances of sexual contact” with appellant; and (3) the outcry or report to police was made “on the day after Appellant declined to finance boots for [the complainant]’s quinceanera.”

A. Standard of Review

In determining whether evidence is sufficient to support a conviction, a reviewing court must consider all the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Turley v. State, 691 S.W.3d 612, 617 (Tex. Crim. App. 2024). The jury is the sole judge of the credibility of witnesses and the weight to be attached to their testimony. Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016).

We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Here, the State had to prove that appellant intentionally or knowingly caused the penetration of the sexual organ of the complainant who was then younger than seventeen years of age. See Tex. Penal Code § 22.011(a)(2)(A).

B. Evidence

Appellant is the complainant's uncle by marriage and had known the complainant since she was about one year old. The complainant's mother had a very close relationship with her sister and appellant, who also had three children. The families, along with the mother's two other sisters, were together every week and would take trips to the beach and camping.

The complainant testified in detail about four specific instances of appellant placing his hand through the waistband of her pants and placing his finger inside her vagina. The assaults occurred between September 2018 and the summer of 2019 when the complainant was thirteen and fourteen years old. She testified that appellant penetrated her vagina with his fingers about ten times in total.

On appeal, appellant highlights the following testimony in his sufficiency challenge:

Q. So, you testified about twice happening in Lake Travis; one time happening in Texas City; and one time happening in League City. So, where do you think the other times happened?

A. In the same places, different days. I just don't remember, like, exactly like details. Like, I don't even remember, like, the ones that I've—I've talked about.

She explained that she might not remember the other six times it happened because, “Like, my mind just freezes or I try to block it out.” On cross-examination, she explained further:

Q. Now, you said that you have a mental block of a lot of the times that this happened; is that correct?

A. Yes.

Q. But the times you do remember, you remember where you were facing, where you were standing, where he was facing, where he was standing?

A. Yes.

Q. So, there are some that you have complete clarity of?

A. Yes.

Q. And plenty you don't?

A. Correct.

The complainant testified that she did not tell her mother about the assaults until June 2020, after they had gotten into an argument about the complainant's attitude and her cursing in her text messages with friends. The mother testified as the outcry witness and described the reported instances similarly to the complainant's testimony. The mother did not go to the police because the complainant made her promise not to do so. The complainant did not want to lose her close relationships with her cousins—appellant's children.

The mother testified that she called and spoke to appellant the same night of the accusation. He didn't deny it. Since that day, the mother cut ties with her sister's family and had not spoken with appellant. The complainant similarly had not seen her cousins or appellant since then. Ultimately, the complainant reported the assault to police in March 2021.

Two of the mother's sisters, including appellant's wife, testified in support of appellant. They didn't believe the accusation. They testified that appellant and the complainant were never alone. They testified that the accusation came to light when the complainant was in trouble with her mother. The wife testified that on the day before the accusation in June 2020, the complainant “got upset” and “wasn't too happy” with the wife because the wife told the complainant “that we were not going to be able to sponsor her boots” for her quinceañera.

The complainant testified during the State's rebuttal that the wife never said she would not sponsor the boots. And the complainant did not report the assaults for the purpose of getting out of trouble.

C. Analysis

As an initial matter, we reject appellant's factual assertion that the mother allowed the complainant to be exposed to continued instances of sexual assault after the outcry. No evidence supports this claim. Rather, the evidence refutes it. Regardless, this contention and his others—that the complainant could not remember the specific instances about which she testified in detail, and that she had an improper motive for making the accusation—are based on conflicting evidence, the credibility of the witnesses, and the weight to be given to their testimony. See Gutierrez v. State, 585 S.W.3d 599, 607 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (“And, it was solely the jury's duty to judge the complainant's credibility and to resolve any conflicts in the evidence.”).

A child complainant's testimony, standing alone, may be sufficient to support a conviction for sexual assault. Torres v. State, 424 S.W.3d 245 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). Indeed, the complainant testified that she had “complete clarity” of the four instances of sexual assault about which she testified in detail. The complainant's testimony did not convey the type of “unrelieved uncertainty” at issue in Redwine v. State, and appellant's reliance on this case is unpersuasive. See 305 S.W.3d 360, 367 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (insufficient evidence of evading arrest when the officer testified initially that he was unsure whether he activated his car's emergency lights and later testified that he had “no recollection and simply did not know” this fact, which was critical to the conviction).

The complainant's testimony contradicted her aunts’ testimony about any ulterior motive for making the accusation. Such credibility issues are reserved for the jury's resolution. A rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. See, e.g., Bautista v. State, 619 S.W.3d 374, 378–79 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (sufficient evidence despite evidence of the child's alleged motivations to lie); McMinn v. State, 558 S.W.3d 262, 267–68, 272 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (sufficient evidence despite the child's testimony that she could not distinguish between “pretend and real” and evidence that the outcry witness harbored bias against the defendant); Bargas v. State, 252 S.W.3d 876, 886–89 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd) (sufficient evidence despite inconsistencies in the child's testimony about where and when the abuse occurred and evidence that she named a non-existent person as a perpetrator during an outcry); see also Garrett v. State, 693 S.W.3d 490, 495–97 (Tex. App.—Houston [14th Dist.] 2023, pet. ref'd) (sufficient evidence of continuous sexual abuse of a child despite the child's inability to recall the details of one instance, vagueness about the exact dates of abuse, and testimony that her memory was “very blurry”).

Appellant's first issue is overruled.

II. Expert Witness Testimony

In his second, third, and fourth issues, appellant makes several overlapping complaints about the admission of the testimony of a forensic interviewer, Kim Keever. Appellant contends that (1) the trial court erred by “overruling the defense objection to Kim Keever as an ‘expert’ witness”; (2) the court erred by “overruling the defense objection to Kim Keever's testimony regarding ‘grooming’ ”; and (3) the totality of the trial justifies and compels reversal for violation of appellant's due process rights under the Fourteenth Amendment to the United States Constitution.

A. Standard of Review, General Legal Principles, and Preservation

A trial court's ruling on the admissibility of evidence, including expert testimony, is reviewed for an abuse of discretion. Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017). The decision must be upheld if it is within the zone of reasonable disagreement. See id.

Under Rule 702 of the Texas Rules of Evidence, a witness “who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if 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. A court makes three inquiries before admitting expert testimony, asking whether “(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case.” Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). “These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.” Id. An expert's qualifications should be evaluated independently from the reliability of the testimony. Id.

Although the proponent of expert testimony has the burden to establish admissibility, this burden is not triggered unless and until the opponent raises a specific objection to the evidence. See White v. State, 549 S.W.3d 146, 151–52 (Tex. Crim. App. 2018) (general rule); State v. Esparza, 413 S.W.3d 81, 86–87 (Tex. Crim. App. 2013) (applied to expert testimony); see also Matson v. State, 819 S.W.2d 839, 852–52 (Tex. Crim. App. 1991) (although burden of establishing a witness's qualifications as an expert lies with the proponent, if a party believed that the witness “was not qualified as an expert to give his testimony, then it was incumbent upon the [opponent] to demonstrate his incompetency through voir dire and to object”). An appellant must preserve error in the trial court by lodging a specific objection. See Tex. R. Evid. 103; Tex. R. App. P. 33.1. Specific arguments about the admissibility of expert testimony raised for the first time on appeal are not preserved. Null v. State, 690 S.W.3d 305, 319 (Tex. Crim. App. 2024); see also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (complaint on appeal must comport with objection made at trial).

An objection based on one of the requirements for expert testimony—such as qualifications or reliability—does not preserve error for another requirement. Shaw v. State, 329 S.W.3d 645, 655 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd). And a general objection to one of these requirements does not preserve error regarding all aspects of that requirement. See Null, 690 S.W.3d at 318–19 (holding that a general objection to the reliability of expert testimony did not preserve error because the burden is “on the opponent to identify which aspect of reliability he is challenging”); see also Acevedo v. State, 255 S.W.3d 162, 167 (Tex. App.—San Antonio 2008, pet. ref'd) (“A specific objection regarding expert testimony must detail the particular deficiency in the expert's qualifications or the reliability of the expert's opinions.”); Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref'd) (“[G]enerally objecting to the qualifications of a tendered expert witness, without specifying any particular deficiency in her qualifications or reliability of her expert opinions, is not sufficient to preserve error on appeal.”).

B. The Record

When the State called Kim Keever as a witness, trial counsel asked to “quickly voir dire” her. The voir dire comprises about three pages of the reporter's record and focuses on Keever's background and experience. Counsel elicited testimony that Keever considered herself an expert in the field of “forensic interviewer.” She had been employed as a forensic interviewer for over ten years with the Advocacy Center for Children in Galveston County. She had conducted over 4,000 interviews. She does continuing education through conferences dealing with crimes against children. She does peer reviews with other forensic interviewers, observes other interviews, does critiques of her own interviews, and reads articles. She held a bachelor's degree in sociology and psychology. When asked whether “further degrees” would have helped her in any way, she answered, “I'm sure.”

At the conclusion of the hearing, counsel argued, “I don't believe she qualifies as an expert, your Honor. No peer reviews, missing vital parts of education.” The court overruled the objection.

During her direct testimony before the jury, Keever testified generally about her procedures for interviewing children and asking them to differentiate between a truth and a lie. Keever testified that she interviewed the complainant, and the complainant was able to determine the difference between a truth and a lie. Counsel did not object.

Counsel objected to testimony about grooming:

Q. And what is grooming?

A. Grooming is a method that offenders use.

Counsel: Objection, your Honor. Speculation.

Court: Overruled.

Q. You may answer, Ms. Keever.

Counsel: Objection, your Honor. Asking for an expert opinion.

Court: She's qualified as an expert.

Counsel: Yes, sir.

A. So, grooming is when an offender tries to gain access and uses different methods to gain access and build trust with a child and a child's parent who maintain or gain access to the child and then possibly get them alone.

The State asked how some children react during forensic interviews. The trial court overruled counsel's objection based on relevance:

Q. So, in those interviews, has a child victim acted the same in all 4,000?

A. No.

Q. Can you briefly tell the jury how some of the child victims react?

Counsel: Objection, your Honor. Relevance.

Court: Overruled. It's background.

A. So, I mean, each child comes in and—I mean, you know, like I told you that, like, in the rapport-building stage, I'm just going to get to know them and see how they are. You know, some of them, once they feel comfortable, then they'll tell me everything and some of them are going to act, you know, nervous or embarrassed. It just—or some of them—some of them have even laughed. A lot of them may avoid and change the subject every time we get to the topic of concern. So, we have to, you know, maybe build a little bit more rapport. It just depends on each child. Every child is different.

After counsel cross-examined Keever and elicited testimony that she does not determine whether a child is lying, the State elicited testimony that Keever did not see “red flags” of deception when she interviewed the complainant:

Q. Are you trained in signs of deception?

A. So, I mean, I'm trained to, you know, just like look at for maybe some red flags. But then, again, I'm going to address those in the interview.

Q. And did you see any red flags in this interview?

A. No.

Counsel did not object.

C. Reliability: Not Preserved

On appeal, appellant evaluates the admissibility of Keever's testimony under seven nonexclusive factors for reliability, citing this court's opinion in Null v. State. See 640 S.W.3d 370, 382 (Tex. App.—Houston [14th Dist.] 2022) (en banc), rev'd, 690 S.W.3d 305 (Tex. Crim. App. 2024). But at trial, appellant objected only to Keever's qualifications. He did not object based on the reliability of her testimony. Thus, no complaint about reliability is preserved. See, e.g., Shaw v. State, 329 S.W.3d 645, 656–57 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd).

D. Qualifications: No Error

To be qualified, an expert's background must be tailored to the specific area of expertise in which the expert desires to testify. Vela v. State, 209 S.W.3d 128, 133 (Tex. Crim. App. 2006). In determining whether an expert is qualified, courts consider three criteria: (1) whether the field of expertise is complex; (2) how conclusive is the expert's opinion; and (3) how central is the area of expertise to the resolution of the lawsuit. Id. at 131. The level of an expert's education, training, or experience is “less important” when (1) the field of expertise is close to the jury's common understanding; (2) the expert's opinions are less conclusive; and (3) the expert's opinions are less crucial to the conviction. See Rodgers v. State, 205 S.W.3d 525, 528 (Tex. Crim. App. 2006).

Here, appellant objected to Keever's qualifications as an expert in the field of child forensic interviews because, “No peer reviews, missing vital parts of education.” But Keever testified that she does peer reviews with other interviewers, reviews other interviews, and does critiques of interviews. Although Keever was “sure” that “further degrees”—beyond her bachelor's degree in sociology and psychology—could help her in her field, appellant did not (and does not) explain what further degrees would be necessary for her to be qualified as an expert in the field of child forensic interviews. Keever had more than ten years of experience and conducted over 4,000 forensic interviews. She participated in continuing education at conferences and read articles.

Appellant has not addressed the Rodgers factors. These factors do not suggest that the trial court abused its discretion. Keever's field of expertise was close to a jury's common understanding; her opinions were not presented as conclusive; and her testimony was not crucial for the conviction given that the complainant and a separate outcry witness both testified. See Gonzales v. State, 722 S.W.3d 351, 355 (Tex. App.—Austin 2025, no pet.) (holding that an expert was qualified to testify about child sexual abuse interviews based on more than four years of experience conducting 843 forensic interviews, a bachelor's degree in psychology, participation in training and peer reviews, and keeping up with current trends relevant to forensic interviewing; reasoning that the Rodgers factors favored admission).

The trial court did not abuse its discretion by overruling appellant's objection to Keever's qualifications. Appellant's second issue is overruled.

E. Grooming: Waived and No Error

In his third issue, appellant contends that the trial court erred by overruling his objection to Keever's testimony about grooming, but he provides no analysis for why the trial court erred or why her testimony was “speculative.” This issue is waived. See Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003) (issues on appeal are waived if the appellant's brief fails to apply the law to the facts); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (issues on appeal waived when the cited authorities do not address the alleged error).

To the extent appellant's issue is not waived because, under his second issue, he cites to this court's “Mineola Swingers” opinion and contends that a “so-called expert was not qualified to testify about ‘grooming,’ ” the case is easily distinguished and does not support a contention that Keever lacked qualifications to testify about grooming. See Kelly v. State, 321 S.W.3d 583, 600–02 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding that a non-medical expert did not have the necessary qualifications to testify about grooming that was predicated on detailed medical information). And in Kelly, this court noted that an expert could “certainly” testify about “what constitutes ‘grooming’ ” and answer a hypothetical about whether certain conduct was a type of grooming. Id. at 602. Keever's general testimony about grooming did not go beyond those bounds.

Appellant has not demonstrated that the trial court abused its discretion by overruling his objections to Keever's testimony about grooming. His second issue is overruled.

F. Red Flags and “Background” Testimony: No Fundamental Unfairness

In his fourth issue, appellant contends that the totality of the trial requires reversal for a violation of his due process rights because fundamental rights were at stake and fundamental fairness was vitiated, citing Rogers v. State, 725 S.W.2d 350 (Tex. App.—Houston [1st Dist.] 1987, no pet.). Appellant focuses on the State's elicitation of Keever's testimony that she did not observe any “red flags” of deception during her interview of the complainant and the trial court's earlier overruling of an objection to “background” evidence. Elsewhere in his brief, appellant contends that the “red flags” testimony was an “improper assertion of truthfulness.” See generally Ex parte Mayhugh, 512 S.W.3d 285, 290 n.3 (Tex. Crim. App. 2016) (noting that an expert may not testify that child victims of sexual abuse have provided truthful testimony, but experts may testify that certain children “did not exhibit behaviors that point to being manipulated” (quotation omitted)).

Rogers held that preservation of error was not required when “fundamental fairness was vitiated” due to the State's serious and pervasive misconduct that undermined the reliability of the factfinding process. See Rogers, 725 S.W.2d at 358–61. No such misconduct occurred in this case. Rather, the State asked a single question to which appellant failed to object. Multiple courts have held that error in the admission of improper evidence must be preserved even when the evidence concerns an opinion about the truthfulness of another witness. See Franco v. State, 339 S.W.3d 793, 795 (Tex. App.—Amarillo 2011, no pet.); Oliver v. State, 32 S.W.3d 300, 303–04 (Tex. App.—San Antonio 2000, pet. ref'd); Glover v. State, 956 S.W.2d 146, 147–48 (Tex. App.—Beaumont 1997, pet. ref'd); Johnson v. State, 933 S.W.2d 195, 205 (Tex. App.—Waco 1996, pet. ref'd); cf. Temple v. State, 342 S.W.3d 572, 593 & n.4 (Tex. App.—Houston [14th Dist.] 2010), aff'd, 390 S.W.3d 341 (Tex. Crim. App. 2013) (holding that preservation of error was required for a complaint that the State violated due process by asking the defendant about the veracity of other witnesses’ testimony).

Appellant's fourth issue is overruled.

III. Conclusion

The evidence is legally sufficient to support appellant's conviction. The trial court did not abuse its discretion by admitting expert testimony. And the isolated and unpreserved claim of error regarding the admission of evidence did not amount to a violation of due process. Appellant's issues are overruled. The trial court's judgment is affirmed.

Ken Wise, Justice