AFFIRM; and Opinion Filed May 2, 2017.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00153-CR
JOSE LUIS MUNOZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F13-12204-I
MEMORANDUM OPINION Before Justices Bridges, Lang-Miers, and Evans Opinion by Justice Lang-Miers The State indicted appellant Jose Luis Munoz on two charges of aggravated sexual
assault of a child and one charge of indecency with a child. He pleaded nolo contendere to all
charges, waived a jury, and tried the cases to the court without the benefit of a plea bargain. The
court found appellant guilty of one charge of aggravated sexual assault of a child, not guilty on
the remaining two charges, and assessed punishment at twelve years’ imprisonment and a $5000
fine. In one issue on appeal, appellant argues that the trial court erred by “allowing an expert to
give the functional equivalent of an opinion that the complainant was truthful[.]” We affirm the
judgment. BACKGROUND
Appellant does not challenge the sufficiency of the evidence to support the conviction.
Accordingly, we recount the evidence only as necessary to address appellant’s issue and provide
context for our opinion.
The complainant, DM, was nineteen years old when she testified at trial. She testified that
when she was five years old her parents and siblings moved from California to Carrollton, Texas,
where they lived with appellant, his wife, and their children. Appellant was DM’s father’s
nephew. After a few weeks, DM’s father moved back to California.
DM described how, during the six months to one year they lived in appellant’s house,
appellant sexually assaulted her beginning when she was in first grade. The abuse involved
touching and penetration of DM’s vagina with appellant’s penis. DM testified that she was afraid
to say anything for fear appellant might “kick us out of the house and we wouldn’t have a place
to stay and then my family or my sisters and my mom would be mad at me.” At some point,
DM’s father came back to Texas and DM’s family moved to their own house a few streets away
from appellant’s house. Appellant visited DM’s house often because he and DM’s father had “a
really strong bond or connection.” DM testified that appellant “would still touch” her over her
clothes at her house.
DM testified that as she grew older and became more educated, she realized what
appellant had done to her, and she began to have nightmares and flashbacks. When she was
sixteen years old, she confided in her sister’s husband about the abuse. Eventually the abuse was
disclosed, DM went to therapy, and the State indicted appellant.
At trial, the State presented testimony from Carla O’Hara, a clinical therapist with the
Children’s Advocacy Center, who presided over group therapy sessions that DM attended. She
described DM as being “very reluctant to talk about” the abuse at first because DM was shy and
–2– guarded about her family. O’Hara said DM “was very concerned about other people knowing
what had happened because she didn’t want to be embarrassed or to bring shame on her family.”
O’Hara said DM attended 114 sessions and over that time eventually talked about the abuse “in
great detail.” O’Hara sat through the trial and testified that DM’s trial testimony was consistent
with the details DM discussed in the group therapy sessions.
The State asked O’Hara to describe the types of things she was trained to look for in
determining whether a particular child might be lying or exaggerating, and O’Hara testified:
So we would look for consistent statements or certainly inconsistencies that would point towards a lie, things that don’t add up when you compare it to experiences of other family members. We have parent consults to keep the parents informed as to what’s going on and if the parents express concerns that it’s inconsistent with, you know, other things within their family, that sort of thing.
When the State asked O’Hara whether she saw “any of those red flags or any of those issues
about [DM] lying or exaggerating,” appellant objected and argued that the question was
“bolstering and calling for an inadmissible opinion of truth telling . . . and credibility of a
witness.” The court overruled the objection, stating “[t]he question is not whether she believed
her, but whether she saw any red flags. You may answer.” O’Hara testified that she did not see
any red flags. Appellant contends the trial court erred by overruling his objection.
DISCUSSION
In his sole issue on appeal, appellant contends that O’Hara’s testimony about “red flags”
was the “functional equivalent of a direct opinion as to DM’s truthfulness,” and it was error for
the trial court to overrule his objection. He contends that “it defies belief that the trial judge
would not have been influenced to some significant degree by the testimony . . . .”
We review a trial court’s evidentiary ruling for an abuse of discretion and will reverse
only when the court’s decision was so clearly wrong as to lie outside the zone of reasonable
disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
–3– An expert may not opine about the truthfulness of a particular complainant or a class of
persons to which the complainant belongs. Yount v. State, 872 S.W.2d 706, 712 (Tex. Crim. App.
1993). However, testimony that assists the trier of fact that is not a direct comment about the
truthfulness of the complainant may be admissible. Schutz v. State, 957 S.W.2d 52, 73 (Tex.
Crim. App. 1997) (expert’s testimony concerning signs of coaching or manipulation may assist
trier of fact).
In Schutz, a social worker testified about the characteristics of a child who has been
manipulated to give particular testimony and that, in her opinion, the complainant in that case did
not demonstrate any of the signs of having been manipulated. Id. at 56–57. The court stated that
the social worker did not “express an opinion about whether the child’s allegations had been the
subject of manipulation but stated merely that the child did not exhibit ‘behaviors that point to
being manipulated.’” Id. at 73. The court concluded that the testimony was not a direct comment
on the child’s truthfulness. Id.
We recently addressed whether similar “red flags” testimony constituted a direct
comment on the truthfulness of the complainant. Rangel v. State, No. 05-15-00609-CR, 2016
WL 3031378 (Tex. App.—Dallas May 19, 2016, pet. ref’d) (mem. op., not designated for
publication). In that case, the forensic interviewer testified that she did not see any “red flags”
that the complainant had been manipulated or coached about what to say regarding the abuse. Id.
at *2. We concluded that the testimony did not constitute a direct comment about the
complainant’s truthfulness and the trial court did not abuse its discretion by overruling the
appellant’s objection. Id.
Appellant cites Rangel and argues that its facts were “manifestly different” from those
here. He argues that “[j]ust before giving the offending testimony, O’Hara related that DM’s trial
testimony was consistent with what [DM] had previously asserted.
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AFFIRM; and Opinion Filed May 2, 2017.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00153-CR
JOSE LUIS MUNOZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F13-12204-I
MEMORANDUM OPINION Before Justices Bridges, Lang-Miers, and Evans Opinion by Justice Lang-Miers The State indicted appellant Jose Luis Munoz on two charges of aggravated sexual
assault of a child and one charge of indecency with a child. He pleaded nolo contendere to all
charges, waived a jury, and tried the cases to the court without the benefit of a plea bargain. The
court found appellant guilty of one charge of aggravated sexual assault of a child, not guilty on
the remaining two charges, and assessed punishment at twelve years’ imprisonment and a $5000
fine. In one issue on appeal, appellant argues that the trial court erred by “allowing an expert to
give the functional equivalent of an opinion that the complainant was truthful[.]” We affirm the
judgment. BACKGROUND
Appellant does not challenge the sufficiency of the evidence to support the conviction.
Accordingly, we recount the evidence only as necessary to address appellant’s issue and provide
context for our opinion.
The complainant, DM, was nineteen years old when she testified at trial. She testified that
when she was five years old her parents and siblings moved from California to Carrollton, Texas,
where they lived with appellant, his wife, and their children. Appellant was DM’s father’s
nephew. After a few weeks, DM’s father moved back to California.
DM described how, during the six months to one year they lived in appellant’s house,
appellant sexually assaulted her beginning when she was in first grade. The abuse involved
touching and penetration of DM’s vagina with appellant’s penis. DM testified that she was afraid
to say anything for fear appellant might “kick us out of the house and we wouldn’t have a place
to stay and then my family or my sisters and my mom would be mad at me.” At some point,
DM’s father came back to Texas and DM’s family moved to their own house a few streets away
from appellant’s house. Appellant visited DM’s house often because he and DM’s father had “a
really strong bond or connection.” DM testified that appellant “would still touch” her over her
clothes at her house.
DM testified that as she grew older and became more educated, she realized what
appellant had done to her, and she began to have nightmares and flashbacks. When she was
sixteen years old, she confided in her sister’s husband about the abuse. Eventually the abuse was
disclosed, DM went to therapy, and the State indicted appellant.
At trial, the State presented testimony from Carla O’Hara, a clinical therapist with the
Children’s Advocacy Center, who presided over group therapy sessions that DM attended. She
described DM as being “very reluctant to talk about” the abuse at first because DM was shy and
–2– guarded about her family. O’Hara said DM “was very concerned about other people knowing
what had happened because she didn’t want to be embarrassed or to bring shame on her family.”
O’Hara said DM attended 114 sessions and over that time eventually talked about the abuse “in
great detail.” O’Hara sat through the trial and testified that DM’s trial testimony was consistent
with the details DM discussed in the group therapy sessions.
The State asked O’Hara to describe the types of things she was trained to look for in
determining whether a particular child might be lying or exaggerating, and O’Hara testified:
So we would look for consistent statements or certainly inconsistencies that would point towards a lie, things that don’t add up when you compare it to experiences of other family members. We have parent consults to keep the parents informed as to what’s going on and if the parents express concerns that it’s inconsistent with, you know, other things within their family, that sort of thing.
When the State asked O’Hara whether she saw “any of those red flags or any of those issues
about [DM] lying or exaggerating,” appellant objected and argued that the question was
“bolstering and calling for an inadmissible opinion of truth telling . . . and credibility of a
witness.” The court overruled the objection, stating “[t]he question is not whether she believed
her, but whether she saw any red flags. You may answer.” O’Hara testified that she did not see
any red flags. Appellant contends the trial court erred by overruling his objection.
DISCUSSION
In his sole issue on appeal, appellant contends that O’Hara’s testimony about “red flags”
was the “functional equivalent of a direct opinion as to DM’s truthfulness,” and it was error for
the trial court to overrule his objection. He contends that “it defies belief that the trial judge
would not have been influenced to some significant degree by the testimony . . . .”
We review a trial court’s evidentiary ruling for an abuse of discretion and will reverse
only when the court’s decision was so clearly wrong as to lie outside the zone of reasonable
disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
–3– An expert may not opine about the truthfulness of a particular complainant or a class of
persons to which the complainant belongs. Yount v. State, 872 S.W.2d 706, 712 (Tex. Crim. App.
1993). However, testimony that assists the trier of fact that is not a direct comment about the
truthfulness of the complainant may be admissible. Schutz v. State, 957 S.W.2d 52, 73 (Tex.
Crim. App. 1997) (expert’s testimony concerning signs of coaching or manipulation may assist
trier of fact).
In Schutz, a social worker testified about the characteristics of a child who has been
manipulated to give particular testimony and that, in her opinion, the complainant in that case did
not demonstrate any of the signs of having been manipulated. Id. at 56–57. The court stated that
the social worker did not “express an opinion about whether the child’s allegations had been the
subject of manipulation but stated merely that the child did not exhibit ‘behaviors that point to
being manipulated.’” Id. at 73. The court concluded that the testimony was not a direct comment
on the child’s truthfulness. Id.
We recently addressed whether similar “red flags” testimony constituted a direct
comment on the truthfulness of the complainant. Rangel v. State, No. 05-15-00609-CR, 2016
WL 3031378 (Tex. App.—Dallas May 19, 2016, pet. ref’d) (mem. op., not designated for
publication). In that case, the forensic interviewer testified that she did not see any “red flags”
that the complainant had been manipulated or coached about what to say regarding the abuse. Id.
at *2. We concluded that the testimony did not constitute a direct comment about the
complainant’s truthfulness and the trial court did not abuse its discretion by overruling the
appellant’s objection. Id.
Appellant cites Rangel and argues that its facts were “manifestly different” from those
here. He argues that “[j]ust before giving the offending testimony, O’Hara related that DM’s trial
testimony was consistent with what [DM] had previously asserted. Then almost immediately
–4– afterwards, [O’Hara] related that her opinions were based on training and experience. She,
herself, thus gave her previous testimony the status of an ‘expert opinion.’” Appellant argues that
“[t]hese elements combine to demonstrate that she was allowed to give inadmissible evidence
that DM was truthful.” We disagree.
We see no distinction between the testimony in Schutz and O’Hara’s testimony in this
case. O’Hara did not testify that DM was telling the truth, was not lying, or was not
exaggerating. Instead, she testified that DM’s therapy sessions did not raise any “red flags” she
was trained to look for in determining whether a complainant was lying or exaggerating. See
Schutz, 957 S.W.2d at 73 (witness did not express opinion about whether child’s allegations were
subject of manipulation but that child did not exhibit “behaviors that point to being
manipulated”). Accordingly, we conclude that the trial court did not abuse its discretion by
overruling appellant’s objection. We resolve appellant’s sole issue against him.
CONCLUSION
We affirm the trial court’s judgment.
/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE
Do not publish TEX. R. APP. P. 47.2(b)
160153F.U05
–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOSE LUIS MUNOZ, Appellant On Appeal from the Criminal District Court No. 2, Dallas County, Texas No. 05-16-00153-CR V. Trial Court Cause No. F13-12204-I. Opinion delivered by Justice Lang-Miers. THE STATE OF TEXAS, Appellee Justices Bridges and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 2nd day of May, 2017.
–6–