JAVIER DIAZ GOMEZ v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice FitzGerald

Appellant Javier Diaz–Gomez was convicted of one count of aggravated sexual assault of a child and one count of indecency with a child.   On appeal, appellant raises three points of error, each challenging the admission of evidence at trial.   We affirm.

I. Background

The indictment for aggravated sexual assault of a child accused appellant of digitally penetrating the female sexual organ of S.O., a child younger than 14 years of age.   The indictment for indecency with a child accused appellant of engaging in sexual contact by touching S.O.'s breast with his hand at a time when she was younger than 17 years of age.

The evidence at trial showed that at the time of the alleged offenses, S.O. was living in a house with her mother, her younger sister M.O., appellant, appellant's brother Marcelino, and some other friends of appellant.   S.O. and M.O. slept in the same bedroom as appellant and S.O.'s mother.   S.O. and M.O. slept in one bed, and appellant slept in a different bed with the children's mother.   S.O. testified that appellant began molesting her when she was about seven years old.   She testified that appellant touched her breasts with his hands and that he used his finger to penetrate her “cosita,” which she described as part of her body that she used to pee.   She testified that appellant committed both kinds of acts more than once.   She also testified that appellant's brother Marcelino did “bad things” to her as well.   S.O. eventually told her aunt about appellant's conduct towards her.   S.O.'s aunt made the report to the police.   A videotape of S.O.'s forensic interview, in which she described appellant's conduct, was admitted into evidence and shown to the jury.

Several other witnesses testified for the State.   The State's first witness was Robert Henly, a police officer who investigated the child-abuse complaint against appellant.   Officer Henly watched the forensic interviewer's interview with S.O., and he testified about his observations during that interview.   S.O.'s aunt also testified, principally about the outcry that S.O. made to her.   S.O.'s uncle also testified about the aftermath of S.O.'s outcry and appellant's arrest.

The jury found appellant guilty of aggravated sexual assault of a child and indecency with a child.   The jury sentenced appellant to twenty years' imprisonment on the first count and ten years' imprisonment on the second count.   Appellant did not timely appeal, but the court of criminal appeals permitted him to perfect an out-of-time appeal.   Ex parte Diaz–Gomez, AP–76,190, 2009 WL 2521211 (Tex.Crim.App. Aug. 19, 2009) (not designated for publication).   Appellant then perfected this appeal.

II. Analysis

Appellant raises three points of error on appeal.   In those points of error, he contends that the trial court erred by allowing Officer Henly, S.O.'s aunt, and S.O.'s uncle to testify about S.O.'s credibility.

We review the trial court's ruling on the admissibility of evidence for abuse of discretion.  Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex.Crim.App.2005).   Thus, we uphold the ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case.   Id. A trial court abuses its discretion only if its decision lies outside the zone of reasonable disagreement.  Davis v. State, 329 S.W.3d 798, 803 (Tex.Crim.App.2010), petition for cert. filed,—U.S.L.W.—(U.S. Apr. 12, 2011) (No. 10–10063).

A. Point of error one:  Officer Henly

Appellant identifies four different occasions on which the trial court allegedly erred by admitting testimony from Officer Henly as to S.O.'s credibility.   The State responds that appellant failed to preserve error because Officer Henly testified to S.O.'s credibility several times but appellant objected only twice.   We conclude appellant failed to preserve error.

Expert testimony that a particular witness is truthful is inadmissible under Texas Rule of Evidence 702.  Yount v. State, 872 S.W.2d 706, 711 (Tex.Crim.App.1993).   An expert may testify that a witness exhibits symptoms consistent with sexual abuse, but not that the witness is truthful.  Schutz v. State, 957 S.W.2d 52, 69 (Tex.Crim.App.1997);  Charley v. State, No. 05–08–01691–CR, 2011 WL 386858, at *4 (Tex.App.—Dallas Feb. 8, 2011, no pet. h.) (mem. op., not designated for publication).   An expert also may testify that a witness did not exhibit signs of being coached or manipulated, because such testimony is not a direct comment on the witness's truthfulness.  Schutz, 957 S.W.2d at 73;  Charley, 2011 WL 386858, at *4. To preserve error with respect to the admission of evidence, a party must make a timely and specific objection to the evidence and obtain a ruling.  Lopez v. State, 253 S.W.3d 680, 684 (Tex.Crim.App.2008).   Moreover, the party must object each time inadmissible evidence is offered unless the party obtains a running objection or obtains a ruling on his complaint in a hearing outside the presence of the jury.  Id.

The first portion of Officer Henly's testimony challenged by appellant is as follows:

Q. Does that help you in assessing the child's credibility if that child is able to consistently distinguish?

[Appellant]:  Objection, Your Honor.   Lack of proper foundation to comment on the credibility of the witness for truthfulness.   I submit it's improper and an improper request.

The Court:  Overruled.   You can answer the question.

Q. Let me finish the question.   Does that help you in evaluating a child's credibility if a child is able to consistently distinguish in some way what happened with one suspect versus another, the location that it happened, or things like that?

A. That lengthens their credibility.   Like I said before, she was able to distinguish between the two different people.   And then also throughout the interview the interviewer would go back and restate it again.   And usually you don't have—I can say in my experience, I usually don't have to deal with two different suspects.   So it was a little confusion as an investigator to keep them both apart.   But you know, she had little problem during the interview of keeping you know, what she said separate on each suspect.   So that lengthened her credibility.

Appellant's trial objection to “[l]ack of proper foundation” differs from his appellate argument that an expert simply cannot testify as to whether a witness was telling the truth.   Thus, error, if any, was not preserved.   See Swain v. State, 181 S.W.3d 359, 367 (Tex.Crim.App.2005) (objection does not preserve error unless it comports with appellant's argument on appeal).   We also note that previously the officer testified to several indicators that affected the child's credibility, such as her emotional reactions, how she acted out by actually lying on the floor, and how she corrected the interviewer.   Appellant did not object to any of this testimony.

Shortly after the first segment of testimony appellant complains of, Officer Henly gave the second segment of testimony challenged by appellant:

Q. Would you expect that a seven-year-old would be able to hear some made up story about two different suspects and be able to keep it straight?

[Appellant.] Objection, Your Honor.   Calls for speculation.

The Court:  Overruled.   You can answer the question if you have an answer.

[A.] I think it would be difficult for a seven-year-old, in my experience, to have been coached to give as good of an account that she did.

Q. Was she consistent throughout the interview?

A. Yes, she was.

Q. Did you have any concerns with her ability to be a reliable witness during the interview?

A. I had no concerns with this victim.

Appellant's objection on the basis of speculation differs from his complaint on appeal that Officer Henly improperly testified that S.O. was telling the truth during her interview.   Thus, error, if any, was not preserved.   See Swain, 181 S.W.3d at 367.

Next, appellant complains about some testimony by Officer Henly when he was recalled to the stand on the next day of the trial.   During his testimony, Henly was asked some questions about a possible factual discrepancy in the various statements given by S.O.'s aunt about the kind of movie she and S.O. were watching when S.O. made her outcry.   Then the following exchange occurred:

Q. Does [the type of movie purportedly shown to S.O.] in any way change your opinion about the reliability or the credibility of that child?

[Appellant]:  Objection, Your Honor.   Once again, it's an improper request by the State as regards to the truth and veracity of the witness.

The Court:  I'll sustain the objection.

[Appellant]:  Ask the jury to be instructed to disregard the question.

The Court:  Denied.

Q. Does it change your opinion about all the testimony you've previously given in this court about the significant factor you saw watching the video interview?

A. It does not.

Q. Does it in any way change your opinion that you couldn't determine there to be any motive or anyone else to make this up?

A. It does not.

Q. Does it in any way change your opinion that you didn't see any signs of anyone coaching [S.O.]?

A. It does not.

Q. All of those opinions still stand exactly as you testified before?

A. That is correct.

Appellant objected at the beginning of this line of questioning and obtained a ruling sustaining his objection, and he also requested an instruction to disregard the question, which the trial court denied.   But on appeal, appellant does not complain about the denial of an instruction to disregard, so we do not address that ruling.   Appellant did not object to any subsequent questions.   As a result, even if those questions sought or elicited objectionable testimony, no error was preserved.   See Lopez, 253 S.W.3d at 684.

Finally, appellant cites this exchange:

Q. Agent Henly, were you able to watch the forensic interview with someone translating it as you were watching it?

A. Yes, ma‘am.

Q. So your opinion about [S.O.]'s reliability comes not from just how she was saying it, how she was using her body and demonstrating, how she was crying, but the words she was saying?

[Appellant]:  Your Honor, I've already objected to his comments about her truthfulness, her veracity.   You sustained that objection.   Now, she's posing the question improperly to matters that have already been sustained as to.   She is now interposing what she believes his answer is going to be.

The Court:  What's your objection?

[Appellant]:  It's an improper question and brings matters that you have ruled on.

The Court:  Sustained.   Rephrase the question.

Q. When you testified regarding your opinion that you believed [S.O.] was a reliable witness based upon that interview[—]

[Appellant]:  Objection.   That's the same objection;  reliability, veracity, truthfulness.   I have the same objection.

The Court:  Sustained.

[Appellant]:  Ask the jury to be instructed to disregard the question.

The Court:  Denied.

Q. When you testified regarding your opinion about [S.O.] and about the forensic interview, did you base that upon what you saw that she did during the interview?

A. That is correct.

Q. Okay. Including pointing to the parts of her body?

A. That's correct, as far as body language.

Q. Getting on the floor and demonstrating?

A. That is correct.

Q. The crying when she was embarrassed?

A. That is correct.

[Appellant]:  Objection, Your Honor.   That's stating facts not in evidence.

[The Court:] Overruled.

Q. Did you also base that on her description throughout the interview?

A. That is correct.

Q. Type of details she was able to give?

A. Yes, ma‘am, that is correct.

Q. Her ability to differentiate between where Javier did things to her and where Marcelino did things to her?

A. That is correct.

Q. Did that include her ability to stay consistent throughout the interview?

A. That is correct.

During this part of the examination, appellant objected twice on the ground that Officer Henly was being asked improper questions about S.O.'s credibility.   The trial court sustained the first objection, and appellant took no further action.   Because he obtained all the relief he requested from the trial court, he cannot complain on appeal.   See Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App.1993).   The trial court sustained appellant's second objection and denied his request for an instruction to disregard.   Appellant does not complain on appeal about the denial of his request to disregard, so again there is nothing for us to review.   Appellant did not object to the remainder of Officer Henly's testimony (aside from his objection that a question stated facts not in evidence, which he does not reassert on appeal).   Appellant preserved no error with respect to this portion of Henly's examination.

We overrule appellant's first point of error.

B. Point of error two:  S.O.'s aunt

In point of error two, appellant complains that certain testimony by S.O.'s aunt was inadmissible under Texas Rule of Evidence 608, which governs non-expert testimony about a witness's character for truthfulness.   The testimony at issue is as follows:

Q. Ms. O[.], did you believe [S.O.] when she told you?

[Appellant]:  Objection, Your Honor.   That calls for an improper response.

The Court:  Overruled.

The Witness:  Yes.

Q. And why?

A.  Because she doesn't lie.   She doesn't say lies.   She's a good girl.

We conclude appellant failed to preserve error because his trial objection does not comport with his argument on appeal.   See Swain, 181 S.W.3d at 367.

We overrule appellant's second point of error.

C. Point of error three:  S.O.'s uncle

In point of error three, appellant complains that certain testimony by S.O.'s uncle was inadmissible under Texas Rule of Evidence 608.   The testimony at issue is as follows:

Q. As far as you knew did the whole family get along with [appellant] before this came out?

A. Yes.

Q. Was [S.O.] the type of child to lie?

[Appellant]:  Objection, Your Honor.   This calls for a statement by this witness as to the credibility of another witness.

The Court:  Overruled.

The Witness:  Not at all.

Q. Have you ever known [S.O.] to lie?

[Appellant]:  Same objection, Your Honor.

The Court:  Overruled.

The Witness:  No.

Q. What kind of child is she?

A. She is a studious little girl.   She does not lie.   And she's obedient.

The State responds that the trial court properly admitted the testimony under Rule 608 because appellant had previously attacked S.O.'s credibility, and alternatively that any error was harmless.

Under Rule 608, a witness may give an opinion about the credibility of another witness subject to two limitations:  (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked by opinion or reputation evidence or otherwise.  Tex.R. Evid. 608(a).   The question for the trial judge under the second prong of Rule 608(a) is “whether a reasonable juror would believe that a witness's character for truthfulness has been attacked by cross-examination, evidence from other witnesses, or statements of counsel (e.g., during voir dire or opening statements).”  Michael v. State, 235 S.W.3d 723, 728 (Tex.Crim.App.2007).   Attacks on the accuracy of specific testimony by a witness, by a prior inconsistent statement or by another witness, do not open the door for rehabilitation of credibility under Rule 608(a).  De La Garza v. State, No. 05–09–00854–CR, 2011 WL 768872, at *2 (Tex.App.—Dallas March 7, 2011, no pet. h.) (not designated for publication) (citing Michael, 235 S.W.3d at 725–26).   The question presented is whether appellant attacked S.O.'s character for truthfulness before S.O.'s uncle testified.

The State argues that appellant attacked S.O.'s character for truthfulness in several respects before her uncle testified to her truthfulness.   The State points to voir dire, in which appellant's counsel asked a venireperson whether any of her children had ever lied to her, and then asked general follow-up questions about ways to determine if someone is telling the truth.   Next, the State cites testimony appellant elicited from S.O. that before trial she talked to the prosecutors about the questions they were going to ask her, and the fact that appellant's counsel asked S.O. several times whether she had told the truth.   Third, the State points out that appellant's counsel cross-examined the forensic interviewer who interviewed S.O. with several general questions about whether children can be coached to tell lies, what the signs of coaching are, and whether family members are likely to be more successful at coaching children than nonfamily members.   Finally, the State cites testimony that supposedly shows a plot by S.O.'s mother and aunt to get appellant and his brother deported so they could steal their property.

We agree with the State that the trial court acted within the zone of reasonable disagreement by admitting the testimony in question.   The trial court could have reasonably concluded that a reasonable juror would believe that appellant had attacked S.O.'s character for truthfulness by asking a venireperson a voir-dire question about whether her children ever lied, by asking S.O. whether she had told the truth in her testimony, in her outcry to her aunt, and in her forensic interview, and by cross-examining the forensic examiner about whether children S.O.'s age can be coached.   Accordingly, the trial court did not abuse its discretion by permitting S.O.'s uncle to testify about her character for truthfulness.

Even if we assumed that the admission of S.O.'s uncle's testimony was error, it was harmless error.   The erroneous admission of evidence of a witness's character for truthfulness is nonconstitutional error.  Rhodes v. State, 308 S.W.3d 6, 10 (Tex.App.—Eastland 2009, pet. dism'd, untimely filed).   Thus, we disregard the error unless it affected appellant's substantial rights.   See Tex.R.App. P. 44.2(b).  Substantial rights are not affected by the erroneous admission of evidence if, after reviewing the record as a whole, the appellate court has fair assurance that the error did not influence the fact-finder or had but a slight effect.  Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002).   In weighing harm, we consider everything in the record, including the evidence, the character of the alleged error and how it might be considered together with the other evidence in the case, the jury instructions, the State's theory, any defensive theories, closing arguments, voir dire, and whether the evidence of guilt is overwhelming.  Id. at 355–58.

We initially review the context of the uncle's testimony.   S.O.'s uncle learned that appellant was dating his sister and approved of him, trusted him, and believed he was taking good care of his sister and her children.   In a conversation with appellant after he was detained, S.O.'s uncle learned what his other sister (S.O.'s aunt) had accused appellant of doing.   He believed appellant because the whole family got along with appellant and appellant had no reason to lie.   Over objection, the uncle testified that S.O. was not the type of child to lie.   He also testified, without objection, that he did not believe appellant when he said he had not done anything.

First, we observe that the uncle's testimony certainly favored appellant in large part.   Next, appellant failed to object to the uncle's testimony that he did not believe appellant's story, which is tantamount to evidence that the uncle therefore believed S.O.'s accusation.   Although the uncle's testimony that the child was not the type to lie is problematic, it assumes far less significance when considered in the context of the balance of the uncle's testimony.

In addition, S.O.'s uncle was a close family member, so the jury would naturally expect him to testify that S.O. was truthful and would likely view his testimony with skepticism.   See Schutz v. State, 957 S.W.2d 52, 72 (Tex.Crim.App.1997).   Although the evidence of guilt consisted largely of S.O.'s own statements, the evidence also showed that her forensic interviewer observed no “red flags” that would undermine her truthfulness.   Also, S.O.'s aunt testified that she observed that S.O.'s vagina was red and swollen after S.O.'s outcry to her.   Moreover, the jury was told repeatedly that they, not a witness, were to determine S.O.'s credibility.   During voir dire, appellant's counsel told the jurors that they would “make credibility determinations about all the witnesses.”   During closing argument, the State told the jury, “You get to judge the credibility of the witnesses up here.   You get to judge the credibility of [S.O.] when she got up there and testified.”   The State did not refer to S.O.'s uncle's testimony during its closing argument.   Finally, the charge of the court told the jurors that they were the “exclusive judges ․ of the credibility of the witnesses.”   We conclude that the brief testimony of S.O.'s uncle that she was a truthful person had no more than a slight influence or effect on the jury.

We overrule appellant's third point of error.

III. Disposition

We affirm the judgment of the trial court.

KERRY P. FITZGERALD JUSTICE