NUMBER 13-09-00623-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JUAN REYES RIVERA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes Memorandum Opinion by Chief Justice Valdez
Appellant, Juan Reyes Rivera, was charged by indictment with the offense of
continuous sexual abuse of a child, a first-degree felony. See TEX. PENAL CODE ANN. §
21.02(b), (h) (Vernon Supp. 2010). A jury convicted Rivera of the charged offense and
sentenced him to life imprisonment in the Institutional Division of the Texas Department
of Criminal Justice. By one issue, Rivera asserts that he was provided ineffective assistance of counsel because his trial counsel allegedly failed to object to the
admission of hearsay testimony from several witnesses, the admission of testimony
concerning the child victim‘s truthfulness, and the prosecutor‘s closing argument. We
affirm.
I. BACKGROUND
Rivera was charged with continuously sexually abusing J.E., an eight-year-old
child.1 See id. § 21.02(b).2 The abuse was discovered when one of J.E.‘s sisters read
a diary that J.E. kept. In her diary, J.E. noted that ―My grandpa [Rivera] tries to rape
me[,] and I don‘t feel comfortable.‖ When J.E.‘s sister discovered this note, she
immediately took it to J.E.‘s mother, C.L. C.L. was surprised by the allegations, but she
asked J.E. about the incidents. J.E. told C.L. that Rivera had touched her more than
one hundred times and that he had repeatedly exposed his penis to her. J.E. initially
told C.L. that Rivera had only touched her with his hands; however, she later noted that
Rivera also touched her with his penis and that he had penetrated her vagina with his
finger. After hearing this story, C.L. took J.E. to Driscoll Children‘s Hospital (―Driscoll‖)
in Corpus Christi, Texas, so that she could undergo an examination.
1 To protect the identities of the children involved, we refer to them and their mother by their initials. See TEX. R. APP. P. 9.8. 2 Section 21.02(b) provides that a person commits the offense of continuous sexual abuse of a young child if:
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.
TEX. PENAL CODE ANN. § 21.02(b) (Vernon Supp. 2010).
2 Nurse Sandra Pardo, a sexual abuse nurse examiner at Driscoll, conducted the
examination of J.E. Nurse Pardo did not find any evidence of trauma to J.E.‘s sexual
organs; however, she noted that it is often the case that trauma is not revealed in the
examination because the body heals very quickly. Nurse Pardo also took a history from
J.E., whereby J.E. stated that:
Grandpa, Juan Rivera, tried to do some nasty stuff with me. He touched it (patient [J.E.] indicates female sexual organ by pointing.) His hands were over my pants. I told him to stop. He stopped. He always does it when Grandma [Blanca Rivera] is gone or asleep. My brothers and sisters go out to play and he grabs me.
Nurse Pardo did not recall J.E. telling her that Rivera penetrated her sexual organ or her
anus with his penis or that he ejaculated.
Tanya Flores, an investigator with the Corpus Christi Police Department, testified
that J.E. ―disclose[d] issues pertaining to sexual abuse.‖ Investigator Flores recalled
viewing J.E.‘s diary, where J.E. described that Rivera had raped her; Investigator Flores
noted that J.E. first told her brother, S.E., about the abuse before she told C.L. J.E. told
Investigator Flores that the abuse took place for two years, from when J.E. was six
years old until she was eight years old. Investigator Flores also discovered that the
alleged sexual abuse transpired at Rivera‘s house in Corpus Christi and at a resort in
New Braunfels.
Ricardo Jimenez, the program director and lead forensic interviewer at the
Children‘s Advocacy Center in Corpus Christi, testified that he interviewed J.E. about
the alleged incidents of sexual abuse for eighteen minutes, a length that Rivera
suggested on cross-examination was insufficient to obtain the truth.3 Jimenez noted
3 A DVD of Jimenez‘s interview of J.E. was admitted into evidence. Initially, on appeal, the record did not contain a copy of the DVD despite a request made by Rivera‘s trial counsel to include the DVD in
3 that J.E. seemed to add details each time she was asked about the abuse. He
characterized this as ―incremental disclosure,‖ wherein ―sometimes kids think they‘re in
trouble, so they‘ll kind of give a little bit of information. If that‘s okay, then more comes
out. . . . [I]f we have an incident of abuse that‘s occurred over a long period of time,
again, more comes out with time.‖ J.E. told Jimenez that Rivera would tell her that she
would owe him ―big‖ or ―big time‖ each time she asked for something and Rivera would
buy it. Towards the end of the interview, Jimenez left the room to discuss the case with
others. He later returned to clear up discrepancies in J.E.‘s stories, especially between
her statement to him and the statements made at Driscoll. 4 J.E. told Jimenez that
Rivera had penetrated her vagina ―30 plus times‖ and that he had touched her vagina
more than 100 times.
S.E. testified that J.E. is one of his younger sisters and that she was ―a good kid‖
who did not get in a lot of trouble. S.E. recalled that Rivera treated J.E. differently than
the other grandchildren. In particular, S.E. stated that ―he [Rivera] would give her all
this money and like we wouldn‘t get no [sic] money and like we would have to use our
own money like if we wanted to buy snacks and then he gave her money so she didn‘t
use her money.‖ S.E. thought that Rivera treated J.E. as his favorite. S.E. remembered
that J.E. told him that Rivera was touching her, but he ―didn‘t really think nothing [sic] of
it.‖ S.E. also remembered one incident where he and his sister, M.E., were locked out
of Rivera‘s house while J.E. and Rivera were the only ones inside. On cross-
examination, Rivera‘s trial counsel questioned S.E. regarding the locked-door incident.
the appellate record. We requested that the trial court provide us with the DVD, which it did. Accordingly, we have reviewed the DVD in analyzing the record in this appeal. 4 One such discrepancy pertained to J.E.‘s disclosure to Jimenez that Rivera had had sex with her in the shower, a story that she did not share with Nurse Pardo.
4 S.E. recalled hearing the door lock and trying to open the door, but it would not open. In
addition, S.E. denied ever being touched inappropriately by Rivera.
Rosemary Goltz, a licensed professional counseling intern, stated that she spoke
with J.E. about the incidents and that J.E. appeared to be tired and regressing or, in
other words, acting like a baby. Goltz attributed J.E.‘s odd behavior to post-traumatic
stress disorder. Goltz remembered that J.E. had difficulty concentrating, and it
appeared that J.E. wished to block out the incidents and no longer talk about them. J.E.
disclosed the alleged sexual abuse to Goltz, and at the conclusion of the interview,
Goltz assisted J.E. in filling out a questionnaire. In the questionnaire, J.E. indicated that
Rivera had: (1) been naked around her; (2) masturbated in front of her; (3) not engaged
in intercourse with her; (4) had oral or anal sex with her; (5) did not force her into
prostitution; and (6) forced her to watch pornographic movies.
On cross-examination of each of the aforementioned witnesses, Rivera‘s trial
counsel inquired about J.E.‘s stories about the abuse, insinuating that J.E. may have
not been truthful given the fact that her story changed repeatedly. Rivera‘s trial counsel
repeatedly asked the witnesses about the apparent inconsistencies in J.E.‘s retelling of
the abuse, thus placing J.E.‘s credibility at issue. It was only on re-direct examination
that the State asked questions of the witnesses regarding J.E.‘s truthfulness in order to
rebut the impression that Rivera‘s trial counsel left with the jury—that J.E. was not
truthful. In addition, the State called Goltz and Paula Rosenstein, a therapist at Family
Counseling Service, to testify that J.E. was suffering from post-traumatic stress disorder
5 and that was likely the reason that J.E.‘s stories about the incidents changed or why
J.E. seemed to add more details with each retelling of the stories.5
J.E. testified that, on March 22, 2008, she wrote in her diary that Rivera had
raped her and that she did not feel comfortable about it. J.E. recalled that Rivera
touched her vagina with his hands, both over her clothes and underneath her clothes.
J.E. stated that the sexual abuse typically occurred in the guest room of Rivera‘s house,
which she considered to be her room. She recalled one incident where Rivera allegedly
got on top of her while she was wearing his white t-shirt. In this instance, J.E. was not
wearing any underwear and Rivera purportedly rubbed J.E.‘s vagina with his penis.
She remembered that something white would often come out of Rivera‘s penis. J.E.
denied that Rivera touched her anywhere else but her vagina. J.E. also testified that
Rivera would make her watch pornographic movies and that he would masturbate in
front of her while watching the movies. Further, J.E. noted that Rivera gave her candy,
gifts, and money frequently despite allegedly not giving the other grandchildren
anything. The State characterized these actions as ―grooming‖ J.E. or, in other words,
bribing her to keep quiet about the sexual abuse. Later in her testimony, J.E. admitted
that she had not told Nurse Pardo or Jimenez everything that had transpired, and she
denied ever telling Jimenez that Rivera had ever put his penis inside her vagina.
5 Rosenstein described J.E.‘s purported post-traumatic stress disorder as follows:
It‘s as if she‘s kind of pocketed off different things that happened to her and as she—as she can or as parts of her kind of open up and—and she relaxes these things come to her mind. It‘s kind of like she segmented things off so that she can cope and she can handle it. If she remembered everything at once[,] she would probably become psychotic.
6 Rivera and his wife, Blanca Rivera, testified on Rivera‘s behalf. Blanca testified
that she did not believe that Rivera sexually abused J.E. According to Blanca, J.E. told
her that ―nobody touches me.‖ Blanca explained that:
She‘s—she‘s a good little girl, but she lies. She likes to make up stories, likes to lie a lot, to get her way. If she don‘t [sic] get her way, she gets into lying, to get the other kids in trouble. That‘s how she is. She‘s a sweetheart, and I love her very much, but she lies to get her way all the time. She lies a lot. Constantly lying.
Blanca also testified that virtually everyone else who alleged that Rivera engaged in
wrongdoing lies, especially C.L. Blanca denied seeing Rivera doing ―stuff for just [J.E.]
without also doing stuff for the other kids.‖ She later recognized a letter sent by Rivera
to C.L., which included $12 for just J.E., but Blanca explained that Rivera really meant
for the money to go to J.E. and one of her brothers. Blanca testified that there are not
any pornographic movies or magazines at the Rivera house. Blanca acknowledged that
she had not spoken to J.E. since J.E. made her outcry statements, more than two years
later. Blanca further testified that Rivera did not pay special attention to J.E.
Rivera testified on his own behalf and denied the allegations made in the
indictment and the allegations made by J.E. Rivera denied treating J.E. any differently
than his other grandchildren. Rivera explained that the $12 he sent J.E. was to be used
to buy lunch at school. Rivera testified that he and C.L. had an agreement for Rivera to
claim J.E. as a dependent on his income tax return for 2006 and 2007. He also testified
that Blanca was in charge of the money, and he was only allowed to buy the
grandchildren snacks at the store. Rivera agreed with Blanca that his grandchildren
were ―a bunch of little liars.‖ Rivera believed that the allegations were made against him
7 because he had previously stated that he was no longer going to baby-sit the children
and he was no longer going to assist C.L. financially.
II. STANDARD OF REVIEW
To establish ineffective assistance of counsel, Rivera must show: (1) his
attorney‘s representation fell below an objective standard of reasonableness; and (2)
there is a reasonable probability that, but for his attorney‘s errors, the result of the
proceeding would have been different. See Strickland v. Washington, 466 U.S. 668,
684 (1984); Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999) (holding that
appellant must show a reasonable probability that, but for counsel‘s errors, the fact-
finder would have had a reasonable doubt as to appellant‘s guilt); Jaynes v. State, 216
S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.). Whether this test has been
met is to be judged on appeal by the totality of representation, not by any isolated acts
or omissions. Jaynes, 216 S.W.3d at 851. Rivera has the burden of proving ineffective
assistance of counsel by a preponderance of the evidence. Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403
(Tex. Crim. App. 1984)).
Our review of counsel‘s representation is highly deferential, and we will find
ineffective assistance only if Rivera overcomes the strong presumption that his
counsel‘s conduct fell within the range of reasonable professional assistance. See
Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. The right to ―reasonably
effective assistance of counsel‖ does not guarantee errorless counsel or counsel whose
competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex.
Crim. App. 1983). Moreover, the acts or omissions that form the basis of Rivera‘s
claims of ineffective assistance must be supported by the record. Thompson, 9 S.W.3d
8 at 814; Jaynes, 216 S.W.3d at 851. A silent record which provides no explanation for
counsel‘s actions usually will not overcome the strong presumption of reasonable
assistance. Thompson, 9 S.W.3d at 813-14. To warrant reversal without affording
counsel an opportunity to explain his actions, ―the challenged conduct must be ‗so
outrageous that no competent attorney would have engaged in it.‘‖ Roberts v. State,
220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (quoting Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005)).
III. THE RECORD
At the outset of our analysis of Rivera‘s appellate complaints, we note that Rivera
did not assert that his trial counsel provided ineffective assistance of counsel in his
motion for new trial. Moreover, the record does not reflect that a hearing was
conducted on Rivera‘s motion for new trial; instead, the motion was overruled by
operation of law. See TEX. R. APP. P. 21.8(a), (c); see also State v. Gutierrez, 143
S.W.3d 829, 831 (Tex. App.–Corpus Christi 2004, no pet.). Thus, Rivera‘s trial counsel
has not been afforded an opportunity to explain his trial strategy. Given that a silent
record ordinarily will not overcome the strong presumption of reasonable assistance, we
will review Rivera‘s appellate complaints to determine whether trial counsel‘s alleged
inactions were ―so outrageous that no competent attorney would have engaged in
[them].‖ See Roberts, 220 S.W.3d at 533; Goodspeed, 187 S.W.3d at 392; Thompson,
9 S.W.3d at 813-14.
IV. HEARSAY
In his first sub-issue, Rivera contends that his trial counsel was ineffective for
failing to object to numerous hearsay statements made by several outcry witnesses.
9 Rivera argues that the admission of these statements violated article 38.072 of the code
of criminal procedure, see TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon Supp.
2010),6 and that, but for his trial counsel‘s failure to object to these statements, the
6 Article 38.072 of the code of criminal procedure provides as follows, in pertinent part:
Sec. 1. This article applies to a proceeding in the prosecution of an offense under any of the following provisions of the Penal Code, if committed against a child 14 years of age or younger or a person with a disability:
(1) Chapter 21 (Sexual Offenses)
....
Sec. 2.
(a) This article applies only to statements that:
(1) describe:
(A) the alleged offense;
(2) were made by the child or person with a disability against whom the charged offense or extraneous crime, wrong, or act was allegedly committed; and
(3) were made to the first person, 18 years of age or older, other than the defendant to whom the child or person with a disability made a statement about the offense or extraneous crime, wrong, or act.
(b) A statement that meets the requirements of Subsection (a) is not inadmissible because of the hearsay rule if:
(1) On or before the 14th day before the date the proceeding begins, the party intending to offer the statement:
(A) notifies the adverse party of its intention to do so;
(B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and
(C) provides the adverse party with a written summary of the statement;
(2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and
(3) the child or person with a disability testifies or is available to testify at the proceeding in court or in any other manner provided by law. . . .
10 result of the trial would have been different. The State counters by arguing that ―the
outcries in question are inconsistent, and that Rivera‘s attorney used the
inconsistencies to his advantage.‖ The State also argues that much of the outcry
testimony about which Rivera complains would be admissible under various exceptions
to the hearsay rule.
On appeal, Rivera directs us to the testimony of Lopez, Jimenez, Nurse Pardo,
Goltz, and S.E. He argues that their testimony constituted inadmissible hearsay
because their testimony ―merely repeat[ed] the same event as related to them by the
victim‖ and, thus, violated article 38.072. See id.; see also Broderick v. State, 35
S.W.3d 67, 73 (Tex. App.–Texarkana 2000, pet. ref‘d) (noting that the proper outcry
witness to a single event is the first adult person other than the defendant to whom the
victim made a statement describing the incident).
After reviewing the record, we hold that Rivera‘s reliance on Broderick is
misplaced, and we disagree that the witnesses ―merely repeat[ed] the same event as
related to them by the victim.‖ See Broderick, 35 S.W.3d at 73. First, with respect to
Broderick, we note that the Texarkana Court of Appeals stated the following:
Because of the way in which the statute [article 38.072] is written, an outcry witness is not person-specific, but event-specific. Before more than one outcry witness may testify, however, the outcry must be about a different event, and not simply a repetition of the same event as related by the victim to different individuals. From a careful reading of the outcry witness statute, we conclude that there may be two proper outcry witnesses if they each testify about different events, but there may be only one outcry witness to the victim‘s statement about a single event.
Id. Therefore, under article 38.072, the State may call upon multiple outcry witnesses to
testify so long as the witnesses testify about different events. In the instant case, J.E.
TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon Supp. 2010).
11 alleged that Rivera sexually assaulted her more than 100 times during a two-year
period—from when she was six years old until she was eight years old. The State‘s
outcry witnesses testified to J.E.‘s recounting of several events, including times when
Rivera allegedly: (1) stuck his penis inside J.E.‘s vagina; (2) touched J.E.‘s vagina with
his fingers; (3) rubbed his penis on J.E.‘s vagina; and (4) forced J.E. to watch
pornographic videos while masturbating. Based on the allegations made by J.E., Rivera
engaged in numerous instances of sexual assault or, in other words, multiple events.
Therefore, we cannot say that the outcry witnesses‘ testimony repeated information
about the same event and was, therefore, inadmissible under article 38.072. See id.;
see also TEX. CODE CRIM. PROC. ANN. art. 38.072.
Moreover, several witnesses testified that J.E.‘s story regarding the ongoing
sexual abuse changed slightly each time she told it. In particular, Jimenez stated that
J.E. appeared to engage in what is known as ―incremental disclosure,‖ wherein the child
victim discloses additional information about ongoing incidences of abuse each time
they speak to someone with whom they are comfortable. Further, Rosenstein and Goltz
described J.E. as having post-traumatic stress disorder, which affected her ability to
convey detailed descriptions of the two years of alleged sexual abuse. The
inconsistencies in J.E.‘s outcry statements and the fact that the sexual abuse was
repeated and ongoing for two years do not support Rivera‘s contention that the
complained-of testimony was repetitive and, thus, inadmissible.
Based on our review of the record, it appears that an objection to the
complained-of testimony would not have been successful. Instead, on cross-
examination, trial counsel questioned most of the witnesses regarding the changes in
12 J.E.‘s story about the two-year period of sexual abuse. Such questioning was likely
done to undermine J.E.‘s credibility before the jury and, therefore, appears to be
grounded in legitimate trial strategy. See Garza v. State, 213 S.W.3d 338, 348 (Tex.
Crim. App. 2007) (stating that if counsel‘s reasons for his conduct do not appear in the
record and there is ―at least the possibility‖ that the conduct could have been grounded
in legitimate trial strategy, we will defer to counsel‘s decisions and deny relief on an
ineffective-assistance claim on direct appeal). Furthermore, even assuming that trial
counsel‘s failure to object to hearsay statements was not grounded in reasonable trial
strategy, Rivera has not clearly demonstrated that there is a reasonable probability that,
but for his trial counsel‘s unprofessional errors, the result of the proceeding would have
been different, especially considering that J.E. testified about the ongoing sexual abuse,
and a child victim‘s testimony alone is sufficient to sustain a conviction for sexual
assault. See Strickland, 466 U.S. at 684; see also TEX. CODE CRIM. PROC. ANN. art.
38.07 (Vernon 2005) (providing that the testimony of the sexual abuse victim alone is
sufficient to support a conviction based on that abuse); Ozuna v. State, 199 S.W.3d
601, 606 (Tex. App.–Corpus Christi 2006, no pet.) (same). We, therefore, overrule
Rivera‘s first sub-issue.
V. THE CHILD VICTIM’S TRUTHFULNESS
In his second sub-issue, Rivera argues that his trial counsel was ineffective for
failing to object to opinion testimony regarding the credibility of J.E. In particular, Rivera
complains about the opinion testimony of Investigator Flores, S.E., and Goltz regarding
J.E.‘s truthfulness and states that this testimony constituted impermissible bolstering.
The State asserts that Rivera‘s trial counsel likely did not object to this testimony
because the witnesses were ―coming across as biased‖; thus, an objection would not
13 have been beneficial. The State also points out that Rivera‘s trial counsel elicited
testimony from Rivera‘s wife that the child victim was a ―good little girl‖ who had a
tendency to lie and make up stories.
A. Applicable Law
―Bolstering occurs when one party introduces evidence for the purpose of adding
credence or weight to earlier unimpeached evidence offered by that same party.‖
Rousseau v. State, 855 S.W.2d 666, 681 (Tex. Crim. App. 1993) (citing Guerra v. State,
771 S.W.2d 453, 474 (Tex. Crim. App. 1988). The court of criminal appeals has also
stated that bolstering evidence is:
any evidence the sole purpose of which is to convince the fact[-]finder that a particular witness or source of evidence is worthy of credit, without substantively contributing ―to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.‖ Accordingly, evidence that corroborates another witness‘ story or enhances inferences to be drawn from another source of evidence, in the sense that it has an incrementally further tendency to establish a fact of consequence, should not be considered ―bolstering.‖
Cohn v. State, 849 S.W.2d 817, 819-20 (Tex. Crim. App. 1993) (emphasis in original)
(citation omitted).
―Regardless of whether a witness is impeached, additional evidence to the same
effect is not ‗bolstering‘ if . . . it makes any substantive contribution or incrementally
tends to further a fact of consequence.‖ Briones v. State, 12 S.W.3d 126, 129 (Tex.
App.–Fort Worth 1999, no pet.). It is not improper bolstering if the testimony elicited is
used to rebut prior impeachments by opposing counsel. See Skeen v. State, 96 S.W.2d
567, 578 (Tex. App.–Texarkana 2002, pet. ref‘d) (―Testimony elicited to rebut prior
impeachments by opposing counsel is not considered improper bolstering.‖) (citing
14 Anderson v. State, 717 S.W.2d 622, 629 (Tex. Crim. App. 1986)); see also Sepulveda v.
State, No. 13-07-627-CR, 2009 Tex. App. LEXIS 981, at *17 (Tex. App.–Corpus Christi
Feb. 12, 2009, pet. ref‘d) (mem. op., not designated for publication).
B. Discussion
In this sub-issue, Rivera complains about statements made by Investigator
Flores, S.E., and Goltz regarding J.E.‘s truthfulness. In particular, Rivera asserts that
―[i]t is generally improper for a witness to offer a direct opinion as to the truthfulness of
another witness and such opinion is therefore inadmissible.‖ Blackwell v. State, 193
S.W.3d 1, 21 (Tex. App.–Houston [1st Dist.] 2006, pet. ref‘d). According to Rivera,
testimony from Investigator Flores, S.E., and Goltz amounted to inadmissible bolstering
of J.E.‘s credibility.
After reviewing the complained-of testimony, we are unable to find any instance
of inadmissible bolstering. With respect to Investigator Flores, Rivera directs us to
testimony on re-direct examination whereby Investigator Flores denied that J.E. made
up her stories because she hated Rivera and stated that she believed J.E.‘s outcry
statements. However, Rivera fails to consider that his trial counsel put J.E.‘s credibility
at issue numerous times throughout the trial and especially during his first cross-
examination of Investigator Flores. Specifically, during his first cross-examination,
Rivera‘s trial counsel impeached Investigator Flores with evidence that police did not
follow up in investigating C.L.‘s boyfriend as a possible suspect and asked whether
Investigator Flores ―believe[d] the child‖ regarding whether Rivera was the perpetrator of
these offenses. Therefore, with respect to Investigator Flores, the State was entitled to
question Investigator Flores on re-direct examination about J.E.‘s truthfulness to rebut
prior impeachment by Rivera‘s trial counsel. See Anderson, 717 S.W.2d at 629; Skeen,
15 96 S.W.2d at 578; see also Sepulveda, 2009 Tex. App. LEXIS 981, at *17. The same is
true with respect to S.E. and Goltz‘s testimony. Rivera‘s trial counsel questioned S.E.
and Goltz about the changes in J.E.‘s stories regarding the incidents, thus putting J.E.‘s
credibility at issue. On re-direct examination, the State questioned S.E. and Goltz about
whether J.E. would make up stories about Rivera. Therefore, because the State was
entitled to rebut Rivera‘s prior impeachment of Investigator Flores, S.E. and Goltz
regarding J.E.‘s truthfulness, an objection would have likely been overruled. As such,
we cannot say that Rivera has satisfied the first prong of the Strickland analysis. See
466 U.S. at 684. Accordingly, we overrule Rivera‘s second sub-issue.
VI. THE PROSECUTOR’S CLOSING ARGUMENT
In his third sub-issue, Rivera contends that his trial counsel should have objected
to statements made by the prosecutor during his closing argument about J.E.‘s
truthfulness. The State argues that the complained-of statements during the
prosecutor‘s closing argument constituted a permissible summation of the evidence and
a reasonable deduction from the evidence; therefore, Rivera‘s trial counsel did not err in
failing to object to the State‘s closing argument because such an objection likely would
not have been successful.
Permissible jury argument generally falls into one of four areas: (1) summation
of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the
argument of opposing counsel; or (4) a plea for law enforcement. Brown v. State, 270
S.W.3d 564, 570 (Tex. Crim. App. 2008); Berry v. State, 233 S.W.3d 847, 859 (Tex.
Crim. App. 2007).
16 Even when an argument exceeds the permissible bounds of these approved areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding.
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (citing Todd v. State,
598 S.W.2d 286, 296-97 (Tex. Crim. App. 1980)). ―The remarks must have been a
willful and calculated effort on the part of the State to deprive appellant of a fair and
impartial trial.‖ Id. (citing Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)).
Nevertheless, when analyzing any harm that may have been caused by an
improper jury argument, we examine the following factors: (1) the severity of the
misconduct (the magnitude of the prejudicial effect of the prosecutor‘s remarks); (2)
measures adopted to cure the misconduct (the efficacy of any cautionary instruction by
the judge); and (3) the certainty of conviction absent the misconduct (the strength of the
evidence supporting the conviction). Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim.
App. 2004) (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on
reh‘g)).
In analyzing the State‘s remarks during closing argument, we must not consider
the statement in isolation; instead, we should review the closing arguments of both
parties in order to determine the context in which the complained-of statements were
made. See Wilson v. State, 938 S.W.2d 57, 61 (Tex. Crim. App. 1996) (―The applicable
legal standard of review is whether, in light of the record as a whole, there is a
reasonable possibility the improper argument might have contributed to appellant‘s
conviction.‖); see also Ozuna, 199 S.W.3d at 613 (holding that the complained-of jury
argument is considered in light of the record as a whole).
17 B. Discussion
On appeal, Rivera specifically complains about the following statements made
during the State‘s closing argument:
I mean, I—I hope, when you go back to deliberate and you think about that that—that troubles you as much as it troubles me because it doesn‘t make any sense that [J.E.] would lie about this only because she‘s been told she can‘t come around because she‘s making the house dirty, and she is the only one making this claim.
So—so why would [J.E.] make up a story that gets her, oh, my God, in all this hot water? I mean, she had to get up here and say things in front of—in front of 13 total strangers? I mean, imagine if you had to do that. Imagine—we‘re not talking about raping. Imagine if some said, ―Juror, take the stand and talk about the way things are with your wife at night,‖ I mean, you would be mortified, right? So how do you think that little kid felt like when she had to sit here and talk about what happened, right. Why would she put herself through that if it wasn‘t true? I mean, that just doesn‘t make sense.
And you saw her demeanor when she was up there. I mean, what does that tell you? She‘s telling the truth. I mean, what nine or ten year old would know that a man‘s erect penis is big, brown and pointy, right? I mean, where do you think she got that? Do you think that just came to her in her dreams?
During trial, Rivera‘s trial counsel repeatedly asked witnesses about the changes
in J.E.‘s stories regarding the incidents. Furthermore, both Blanca and Rivera testified
that J.E., C.L., S.E., and others lie constantly to get their way. Therefore, Rivera‘s
defensive theory was that these allegations were falsely made in an attempt to get
Rivera in trouble, which as Rivera explained, was probably due to Rivera‘s refusal to
baby-sit his grandchildren anymore. In his closing statement, the prosecutor responded
to this defensive theory and explained that J.E. did not have a motive to lie about
18 Rivera. See Brown, 270 S.W.3d at 570; Berry, 233 S.W.3d at 859; see also Wolfe v.
State, 917 S.W.2d 270, 280-81 (Tex. Crim. App. 1996) (stating that rhetorical questions
are generally within the scope of jury argument so long as they are based upon a
reasonable deduction from the evidence and that a prosecutor ―may argue his opinions
concerning issues in a case so long as the opinions are based on evidence in the
record and not as constituting unsworn testimony‖). The prosecutor also summarized
the evidence adduced at trial, including testimony from J.E. about what Rivera‘s penis
looked like. See Brown, 270 S.W.3d at 570; Berry, 233 S.W.3d at 859. Because the
portion of the prosecutor‘s closing argument about which Rivera complains constitutes a
summation of the evidence and a response to Rivera‘s defensive theory, we cannot say
that the prosecutor‘s closing argument was improper. See Brown, 270 S.W.3d at 570;
Berry, 233 S.W.3d at 859. Thus, an objection by Rivera‘s trial counsel to the
prosecutor‘s closing argument likely would not have been successful. As a result, we
overrule Rivera‘s third sub-issue.
VII. CONCLUSION
Having overruled all of Rivera‘s issues on appeal, we affirm the judgment of the
trial court.
____________________ ROGELIO VALDEZ Chief Justice
Do not publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 10th day of March, 2011.