AFFIRM; and Opinion Filed February 19, 2014.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00088-CR No. 05-13-00089-CR
EDUARDO ENRIQUE ALFARO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause Nos. 401-82025-2011 and 401-82026-2011
MEMORANDUM OPINION Before Justices FitzGerald, Lang, and Lewis Opinion by Justice Lewis Appellant Eduardo Enrique Alfaro was charged in two separate causes with continuous
sexual abuse of a child, aggravated sexual assault of a child, sexual assault of a child, and
indecency with a child. Appellant pleaded not guilty and a jury found him guilty as charged. In
cause no. 401-82025-2011, the trial court assessed punishment at fifty years imprisonment on the
offense of continuous sexual abuse of a child, and forty years imprisonment on the offense of
aggravated sexual assault of a child. In cause no. 401-82026-2011, the trial court assessed
punishment at forty years imprisonment on the offense of sexual assault of a child, and twenty
years imprisonment on the offense of indecency with a child. The trial court ordered that the
sentences run concurrently. In two issues on appeal, appellant contends the trial court erred in
denying his objections to improper expert testimony and improper bolstering testimony. The background of the case and the evidence are well known to the parties, and we
therefore limit recitation of the facts. Because all dispositive issues are settled in law, we issue
this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the judgments of the trial
court.
STANDARD OF REVIEW
We review a trial court’s decision to admit or exclude expert testimony for an abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Weatherred v. State,
15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court abuses its discretion if it acts without
reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.
Crim. App. 1990). A trial court does not abuse its discretion if its decision is within the zone of
reasonable disagreement. Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008); Sexton
v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002).
EXPERT TESTIMONY
In his first issue, appellant argues the trial court erred in overruling his objection to the
expert testimony of Lisa Martinez as improper testimony concerning the truthfulness of a class of
people. In determining whether expert testimony should be admitted, the trial court is guided by
Rule 702 of the Texas Rules of Evidence. TEX. R. EVID. 702. Expert testimony is admissible if
it assists “the trier of fact to understand the evidence or to determine a fact in issue.” Id.
However, expert testimony does not assist the jury if it constitutes “a direct opinion on the
truthfulness” of a child victim’s allegations. Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim.
App. 1993) (testimony regarding an opinion of truthfulness 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). An
expert may testify that the witness exhibits symptoms consistent with sexual abuse, but not that a
witness is truthful. Cohn v. State, 849 S.W.2d 817, 818–19 (Tex. Crim. App. 1993).
–2– After complainant’s outcry, her mother took her to the police. Complainant was then
interviewed by Martinez, a forensic interviewer for Children’s Advocacy Center of Collin
County (CAC). At trial, Martinez described the forensic interview process utilized at CAC to
interview victims. Martinez also testified regarding general characteristics associated with
victims, including reasons why it is so difficult for some victims to make an outcry, and why
some victims wait so long to make an outcry. Appellant complains about the following
testimony:
State: I want to talk to you about a number of things that you talked about. You said that sometimes you feel guiltier and guiltier because you didn’t tell. Why is that?
Martinez: Well, at first sometimes kids don’t realize - - if they’re pretty young kids they don’t realize what they did was wrong, or they don’t real [sic] what the perpetrator was doing is wrong. It’s just something - -
Defense: Your Honor, I’m going to have to object to speculation. She doesn’t know what kids realize.
State: I think she does.
Court: Yeah, overruled, counsel.
Martinez: So sometimes they just don’t realize what they do is wrong because they’re so young. And when you have a parent figure doing something that’s not okay to them, it kind of skews their view because they don’t know what’s right and what’s wrong. What you learn as an adult of what’s normal and what’s not normal is a lot of times what you learn as a parent. Especially in Hispanic households, you know, we are taught you listen to your parents no matter what. You listen to adults. You respect adults. What they say goes. So if this adult is doing these things to you that feel kind of weird or you don’t know, you know, head or tails about it, a lot of the times they’re not going to tell right away. After that when you realize that they’re not telling either or that it might be wrong or something, it gets kind of harder and harder to tell as time goes on, because you should have told at the beginning and then you start feeling more of the shame and guilt and that it’s your fault.
–3– State: In your experience with the interviews that you’ve conducted, do you find that it’s harder for children who waited, who didn’t tell right away?
Martinez: Yes.
Defense: Objection. I’d like to object under Rule 702. We’re talking about classes of people. In 1500 people she’s interviewed children will sometimes do this. Under Rule 702 there’s case law that says that that kind of testimony will not assist the trier of fact to come up with a solution, and it’s excludable under Rule 702 and we would object to that, Judge. Anything talking about classes of people or generalities where she’s actually testifying that ultimately are going to make more specific testimony.
Court: Y’all approach, counsel.
(At the Bench, on the record)
Court: Let me see what you’ve got because unfortunately I only have an ’09 book.
Defense: Judge, this is a head note but it basically says an expert who testifies that a class of persons to which the victim belongs is truthful is essentially telling the jury that they can believe the victim in the incident case as well. Yount v. State, 872 S.W.2d 706 pretty much indicated that’s not expert testimony.
State: I don’t recall asking her if the victim’s truthful. I didn’t ask if the victim’s been truthful. I didn’t intend to ask that either.
Defense: I’m fearful, Judge, that we’re crossing a line. What will happen is we’re establishing testimony about classes of people. Young children can do this. Young children can do that. And then we’re going to get more specific and then that is when that class testimony comes in and helps a jury to form an opinion that she’s an expert.
State: The key word in that is truthful, and I’m not going to ask her if she believes a child’s been truthful.
Court: I’m going to overrule the objection, counsel, based on the question I heard. Go ahead, counsel.
On appeal, appellant contends that Martinez’s testimony was an inadmissible opinion on the
truthfulness of the complainant. Appellant argues that by testifying that Hispanic children would
–4– naturally be submissive to a parental figure, Martinez was implicitly testifying that
complainant’s delayed outcry was truthful. Appellant asserts that “in effect, Martinez testified
that the complainant’s delayed outcry could be believed because she was a Hispanic child.”
The State responds that appellant’s first issue is not properly before this Court because
appellant did not make a timely trial objection. The State points out that appellant waited until
the next question was asked and answered before making an objection. Citing Dinkins v. State
and Girndt v. State, the State argues that appellant’s objection was untimely and error was
waived. See Dinkins v. State, 894 S.W.2d 330, 354–55 (Tex. Crim. App. 1995) (“If [a
defendant] fails to object until after an objectionable question has been asked and answered, and
he can show no legitimate reason to justify the delay, his objection is untimely and error is
waived.”); Girndt v. State, 623 S.W.2d 930, 934–35 (Tex. Crim. App. 1981) (“The well
established law of this State has long been that after a question is asked and answered by a
witness without objection, with no claim that there was any misunderstanding, or without any
reason shown for not objecting before the answer was given, the refusal of the trial court to
withdraw the answer from the jury or instruct the jury not to consider the answer is not error.”).
Appellant contends his trial counsel waited to object until Martinez offered her
“inadmissible conclusion” in response to the next question. Citing Acevedo v. State, Appellant
argues that an objection to an expert’s testimony lodged after that expert’s testimony “solidified”
is sufficient to properly preserve error for appeal. See Acevedo v. State, 255 S.W.3d 162, 167–69
(Tex. App.—San Antonio 2008, pet. ref’d). However, Acevedo is distinguishable from the case
before this Court. In Acevedo, the defendant objected to the reliability of the expert’s testimony
in its entirety after cross-examination revealed that the expert had no underlying facts and data to
support his testimony. See id. at 168. Because this complete absence of underlying facts and
data was only made known during cross-examination, the Acevedo Court concluded that an
–5– objection following cross-examination was timely. Id. Here, however, appellant is not objecting
to all of Martinez’s testimony; he is objecting to one specific statement in Martinez’s lengthy
testimony.
To preserve a complaint for appellate review, a specific and timely request, objection, or
motion must be made to the trial court. TEX. R. APP. P. 33.1(a); see Lackey v. State, 364 S.W.3d
837, 843 (Tex. Crim. App. 2012); Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008).
The objection is timely only if the party makes the objection as soon as the grounds for it become
apparent. Lackey, 364 S.W.3d at 843. “Typically this means ‘as soon as the [objecting party]
knows or should know that an error has occurred.’” Id. (quoting Hollins v. State, 805 S.W.2d
475, 476 (Tex. Crim. App. 1991)). In his appellate brief, appellant clarifies that he specifically
objects to Martinez’s statement “[e]specially in Hispanic households, you know, we are taught
you listen to your parents no matter what” as being testimony that complainant’s delayed outcry
could be believed because she was a Hispanic child. However, during trial, appellant’s trial
counsel did not object during or at the conclusion of Martinez’s statement about Hispanic
households. Instead, the record reflects that Martinez’s testimony continued for five more
sentences. The State then asked Martinez another question, without an objection from defense
counsel, and Martinez answered. Only after Martinez completed her answer to the second
question did appellant’s trial counsel object to Martinez’s testimony as being testimony that
would not assist the trier of fact under rule 702. We conclude appellant’s objection was not
timely. Lackey, 364 S.W.3d at 843.
Even if defense counsel had timely objected to Martinez’s statement regarding Hispanic
households, the trial court did not abuse its discretion in overruling the objection. Appellant
relies on Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993) and Wilson v. State, 90 S.W.3d
391 (Tex. App.—Dallas 2002, no pet.) to support his argument that Martinez’s statement about
–6– Hispanic households was a comment on the complainant’s truthfulness. However, in both the
Yount and Wilson cases, the State attempted to elicit specific expert testimony that child victims
as a class rarely lie about being sexually assaulted. See Yount, 872 S.W.2d at 707–08; Wilson, 90
S.W.3d at 393. The reviewing courts concluded such expert testimony did not aid, but
supplanted, the jury in its decision on whether the child complainant was credible. See Yount,
872 S.W.2d at 711–12; Wilson, 90 S.W.3d at 393. In the case before this Court, appellant
concedes Martinez never specifically said the word “truthful.” Indeed, the record reflects the
State did not ask, and Martinez did not testify, if she thought the complainant, or the class of
Hispanic children, was truthful. Testimony that Hispanic children are taught to listen to their
parents is not equivalent to opinion testimony stating that because the child complainant was
Hispanic, she was telling the truth. Expert testimony that provides useful information to aid the
jury in evaluating the testimony of another witness is admissible. Burke v. State, 371 S.W.3d
252, 259 (Tex. App.—Houston [1st Dist.] 2011, pet. dism’d); Bryant v. State, 340 S.W.3d 1, 11
(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). We conclude the trial court did not abuse its
discretion when it overruled appellant’s objection. We overrule appellant’s first issue.
BOLSTERING
In his second issue, appellant complains that the trial court erred in overruling his
objection that testimony by Dr. Kathleen Lang was improper bolstering. Lang is a medical
doctor who works at the REACH Clinic at Children’s Medical Center in Dallas, Texas. The
REACH Clinic performs sexual assault forensic exams when a child is referred to the clinic with
a recent disclosure of sexual abuse. Lang testified that a verbal history is obtained from the
parents or the child. According to Lang, the child is then given a regular physical exam and a
genital exam. Lang testified that the verbal history dictates what types of testing the clinic will
do, i.e., testing for sexually transmitted diseases. Lang then testified, without objection, that the
–7– complainant was given a medical exam and a genital exam. Appellant initially asserts Lang’s
testimony that a genital exam was necessary is improper bolstering. However, the record clearly
reflects that at trial, defense counsel did not object to this portion of Lang’s testimony. Later in
his brief, appellant contends Lang’s testimony that additional testing was necessary based on
complainant’s verbal history improperly bolstered complainant’s credibility. According to the
record, the trial court sustained defense counsel’s hearsay objection but overruled his improper
bolstering objection as follows:
State: Was a verbal history taken of [I.L.]?
Lang: There was.
State: Was she able to describe what had happened to her?
Lang: Yes, she was.
State: Was she able to describe who assaulted her?
State: If you would, could you tell me what her verbal history was?
Lang: She stated that - -
Defense #1: Objection, Your Honor, hearsay.
Court: Sustained, counsel.
Lang: She stated that it was the - -
Defense #1: Objection.
Court: Approach, counsel.
Court: I’ve even got us a mike over here today. Here’s why I sustained the objection. The case law indicates you’re not entitled to general reading of the case history but you can - - she’s allowed to tell you the case history necessary to show what her exam showed that’s connected to that.
–8– State: Okay.
Defense #2: Judge, may I ask a question on that?
Court: Yes, sir.
Defense #2: Any question that would get her to elicit some kind of a hearsay statement against Eduardo, I don’t know if that statement necessarily gets out of a hearsay objection for purposes of medical diagnosis, because you’re not trying to make a medical diagnosis as far as anything she may be complaining about. She’s just there to see if - - to do an examination to see if there’s evidence of sexual - -
Court: Yeah, but what I’m saying is if she has findings, then she’s allowed to indicate what parts of the verbal history coincide with that finding.
Defense #2: That’s fair enough.
Defense #1: It does bolster the testimony of the complaining witness though. It’s bolstering.
Court: Well, I’ll overrule that one. I mean, the case law I think is pretty clear of what you can and can’t do. You can’t just generally get up and have her read it, okay.
(Bench conference concluded)
State: Dr. Lang, based on the verbal history, were there parts of [I.L.] that needed to be checked?
Lang: Yes
State: What parts needed to be checked?
Lang: She would require a full exam where we would basically make sure there was (sic) no sores in her mouth or anything of that sort in addition to the normal exam and also we’ll check her genital area.
Appellant argues that Lang’s testimony was improper bolstering because it implied that Lang
believed the complainant’s story; otherwise, Lang would not have ordered additional testing.
Appellant further argues that by implicitly testifying that she believed complainant, Lang
enhanced the complainant’s credibility before the jury. The State contends this issue is not –9– properly before the Court because the objection was sustained on hearsay grounds and appellant
never secured an adverse ruling. The State also argues that appellant did not preserve this issue
for appeal because appellant did not object when the same evidence was subsequently admitted.
In order to preserve error in admitting evidence, defense counsel was required to make a
proper objection and get a ruling on that objection, which he did. TEX. R. APP. P. 33.1; see also
Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Valle v. State, 109 S.W.3d 500, 509
(Tex. Crim. App. 2003). In addition, defense counsel was required to object each time the
inadmissible evidence was offered or obtain a running objection. Lane, 151 S.W.3d at 193;
Valle, 109 S.W.3d at 509. “An error [if any] in the admission of evidence is cured where the
same evidence comes in elsewhere without objection.” Lane, 151 S.W.3d at 193; see also Leday
v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (“Our rule . . . is that overruling an
objection to evidence will not result in reversal when other such evidence was received without
objection, either before or after the complained-of ruling.”). In the present case, after the trial
court overruled defense counsel’s bolstering objection, defense counsel failed to object when
Lang was asked and answered a number of questions regarding the medical and genital
examination of complainant, and other medical testing performed as part of the examination.
Any error in the admission of the objected-to testimony was therefore cured. Lane, 151 S.W.3d
at 193; Valle, 109 S.W.3d at 509–10. Appellant’s second issue is overruled.
–10– CONCLUSION
Having overruled appellant’s issues, we affirm the trial court’s judgments.
/David Lewis/ DAVID LEWIS JUSTICE
Do Not Publish TEX. R. APP. P. 47
130088F.U05
–11– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
EDUARDO ENRIQUE ALFARO, On Appeal from the 401st Judicial District Appellant Court, Collin County, Texas Trial Court Cause No. 401-82025-2011. No. 05-13-00088-CR V. Opinion delivered by Justice Lewis. Justices FitzGerald and Lang participating. THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 19th day of February, 2014.
–12– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
EDUARDO ENRIQUE ALFARO, On Appeal from the 401st Judicial District Appellant Court, Collin County, Texas Trial Court Cause No. 401-82026-2011. No. 05-13-00089-CR V. Opinion delivered by Justice Lewis. Justices FitzGerald and Lang participating. THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
–13–