in the Matter of Z.M.M., a Child

• Court: Court of Appeals of Texas
• Decided: January 24, 2008
• Docket: 01-06-00508-CV
• Status: Published

Opinion

Opinion issued January 24, 2008 

In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-00508-CV

IN THE MATTER OF Z.M.M.

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On Appeal from County Court No. 3

Galveston County, Texas

Trial Court Cause No. 05JV0261

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MEMORANDUM OPINION

          A jury found that appellant, Z.M.M., engaged in four counts of delinquent conduct involving aggravated sexual assault of a child, and the trial court ordered disposition that appellant be placed in custody with his mother and be on probation until his 18th birthday. We determine whether appellant has preserved error as to his complaint that the prosecutor improperly bolstered the complainant’s credibility. We affirm.Background

          On four separate occasions, once in July of 2003, once in August of 2003, and twice in November of 2004, appellant sexually assaulted the complainant, a younger boy. During trial, the State called Dr. Lukefahr, an expert on child sexual abuse, to testify about reviewing medical reports that were prepared by a pediatric nurse, Anjenean Bolster. Dr. Lukefahr indicated that the physical findings in the medical report were normal. Next, Bolster testified to some of the general indicators of children who have been sexually abused. Bolster then testified that when she interviewed the complainant at the clinic about the events in question, she asked the complainant questions about himself and the events that had taken place. After the testimony of Dr. Lukefahr, Bolster, and other witnesses, the jury came back with a verdict of true on all four counts of delinquent conduct involving aggravated sexual assault.Preservation of Error

          In his sole issue presented for review, appellant contends: (1) the first part of Dr. Lukefahr’s testimony improperly bolstered the credibility of the complainant; (2) the second part of Dr. Lukefahr’s testimony was improper; and (3) the testimony of nurse Bolster bolstered the complainant’s credibility. The first two complaints are not preserved by any trial objection. See Tex. R. App. P. 33.1(a)(1)(A); In re G.A.T., 16 S.W.3d 818, 825 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (holding that a timely objection must be made in order to preserve error). The third complaint is not preserved because the trial objection, hearsay, fails to comport with the argument on appeal, bolstering. See Barnes v. State, 876 S.W.2d 316, 325 (Tex. Crim. App. 1994) (holding that the trial objection did not comport with the issue raised on appeal; consequently, there was no preservation for review). To the extent that appellant may have attempted to raise a complaint of fundamental error, thereby excusing any lack of preservation, we hold that the error raised here does not rise to the level necessary to constitute fundamental error. See Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (holding that comments of the trial court tainting defendant’s presumption of innocence in front of venire were fundamental error of constitutional dimension requiring no objection). Accordingly, we overrule appellant’s sole issue presented for review.

     Conclusion

          We affirm the judgment of the trial court.

                                                                        Tim Taft

                                                                        Justice

Panel consists of Justices Taft, Keyes, and Alcala.