ELIZABETH LANG-MIERS

AFFIRM; Opinion Filed August 2, 2012.

On Appeal from the Criminal District Court No. 2

Dallas County, Texas

Trial Court Cause No. F10-58849-I

OPINION

Before Justices O'Neill, Richter, and Lang-Miers

Opinion By Justice Lang-Miers

A jury convicted appellant Jose Luis Vasquez of continuous sexual abuse of a child under 14 years of age and sentenced appellant to 40 years in prison. In two issues on appeal appellant argues that (1) the evidence is legally insufficient to prove that the sexual abuse was continuous, and (2) the trial court erred when it permitted the forensic interviewer to bolster the credibility of the complaining witness. We resolve appellant's issues against him and affirm. Background

Appellant was indicted for the continuous sexual abuse of his girlfriend's daughter, A.L. The indictment alleged that appellant contacted and penetrated A.L.'s sexual organ two or more times "during a period that was 30 or more days in duration."

The State's Evidence

The State's witnesses included the complainant, A.L., her mother, her aunt, the detective who investigated the crime, and the forensic interviewer who interviewed A.L.

A.L. was nine years old at the time of appellant's trial. A.L. testified that appellant lived with her and her family in two different apartments, but her testimony about when they lived in each place was somewhat unclear:

Q. How many different places did he live with you at?
A.Two apartments.
Q. In the first apartment, what grade were you in when you lived there with him?
A. I was half in second-no. I was in second, and then the next year, I was half in third.
Q. So in the first apartment, you lived there for second grade and the first half of third?
A.Yes.
Q. Okay. And did you live there in the summer between second and third?
A. Yes.
Q. How do you know that?
A. Because the pools were open at the apartments.
Q. The pools were open at the apartments?
A. (Witness nods head.)
Q. Okay. And in the second apartment, what grade were you in when you lived there with [appellant]?
A. I was at the last part of third grade.
Q. Okay. And was that in the wintertime?
A. Yes, because it started snowing.
Q. So you know it was wintertime because it started snowing?
A. (Witness nods head.)
Q. I just need you to answer out loud.
A. Yes.

A.L. testified that she was eight years old the first time appellant sexually abused her, but she appeared to be unclear about what time of year it occurred:

Q. Okay. So your birthday is in late May. And when did-the first time something happened, was school out for the summer or was it still in session?
A.It was school out.
Q.So was it close to your birthday that something happened the first time?
A.No. I don't know.
Q.I'm sorry. I may not be asking that right. Okay. That's okay. So the first time something happened, it was summer vacation?
A.Yes.

When asked how many times "did something like that happen in the first apartment," A.L. responded, "Like-like, two times, I think." When asked "[h]ow many times did something like that happen in the second apartment, A.L. responded, "Maybe once. I don't remember." She described the circumstances surrounding one occurrence in the second apartment, but did not testify about when it occurred. A.L. testified that she told her mom what happened and later talked to her aunt Heidi, who called the police.

During cross-examination A.L. testified that she did not report the sexual abuse until after appellant was arrested for hurting A.L.'s brother and A.L. was taken away from her mother by CPS. She testified that she is still afraid of being taken away from her mother.

During re-direct examination by the State A.L. was asked, "[A]re you making any of this up because you're mad at [appellant] for what happened to [your brother]," and A.L. responded, "No."

A.L.'s mother, Tanya Leal, testified that she met appellant on the internet in September 2009 and they lived together with her three children from late November 2009 until February 24, 2010, when appellant was arrested for abusing Leal's one-year-old son. They lived in an apartment on Walnut Street until the beginning of January 2010 when they moved to another apartment on Dallas Parkway. During the time appellant lived with Tanya and her children appellant lost his job and offered to take care of the children while Tanya worked. He watched them during Thanksgiving and Christmas breaks.

After appellant stopped living with Tanya and her children, A.L. told Tanya "what's been going on," but when Tanya tried to talk to A.L. about it, A.L. was "[b]othered, sad and scared because she didn't want to talk about it any longer." Tanya asked her sister to talk to A.L. and after that Tanya contacted child protective services and took A.L. to the Dallas Children's Advocacy Center for a forensic interview. Tanya also testified that she has genital herpes and that appellant contracted genital herpes from her.

Tanya's sister, Heidi Leal, testified that A.L. and her two brothers lived with Heidi and her husband for a year because of the case against appellant involving the injury to A.L.'s younger brother. Approximately six months after appellant went to jail for injuring A.L.'s brother, Heidi talked to A.L. who told her that appellant had hurt her "with the thing that he has between his legs." A.L. told Heidi she could not remember whether it had happened "one or two times."

Nancy McNeil, a pediatric nurse practitioner, testified that she performed a "REACH exam" on A.L. in July 2010. According to the medical history that McNeil was provided, the last sexual contact between A.L. and appellant occurred in February 2010. A.L. tested positive for herpes but the examination yielded no physical evidence of sexual abuse, which McNeil testified could be due to healing that occurred between the abuse and the exam.

At the conclusion of the State's evidence appellant moved for a directed verdict "on the issue of continuous sexual abuse as there has been no proof that any acts were committed 30 days or more apart." The trial court denied appellant's motion.

Appellant's Evidence

Appellant testified in his own defense and repeatedly denied that he ever committed any sexual acts with A.L. Appellant also denied that he injured A.L.'s brother. Appellant testified that he had a great relationship with Tanya and that he called her children his children because he loved them very much. He testified that he believes A.L. lied about the abuse as part of a "CPS conspiracy" that began after he was accused of injuring A.L.'s brother.

One of appellant's friends and two of his former stepdaughters also testified briefly in his defense. They each testified that appellant is a person of good character.

First Issue

In his first issue appellant argues that the evidence is legally insufficient to support his conviction.

Applicable Law and Standard of Review

The State was required to prove that appellant committed two or more acts of sexual abuse against A.L. during a period that is 30 or more days in duration. See Tex. Penal Code Ann. § 21.02(b) (West Supp. 2011).

When we review a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). We defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326.

Analysis

Appellant argues that the evidence is legally insufficient to support his conviction because "[A.L.] did not know if the assaults occurred more than 30 days apart and never told any witness that the assaults occurred more than 30 days apart." In response the State argues that the evidence is legally sufficient because it supports an inference that the first incident occurred during A.L.'s Thanksgiving vacation, and another incident occurred more than 30 days later after they moved to the second apartment in January. We agree with the State. Although A.L. indicated that the first incident occurred in their first apartment during her "summer vacation," she also testified more generally that it occurred during "school out," which would include her Thanksgiving vacation. A.L.'s mother, who testified through a Spanish-speaking interpreter, also initially testified that appellant watched the children during "summer vacation," but later clarified that she meant Thanksgiving and Christmas vacations because appellant did not live with them during a summer. A.L.'s mother also testified that they moved to a second apartment in January and A.L. described an incident of sexual abuse in the second apartment. After examining all of the evidence in the light most favorable to the verdict we conclude that a rational jury could have found beyond a reasonable doubt that the incidents of sexual abuse occurred at least 30 days apart. As a result, the evidence is sufficient to support appellant's conviction for continuous sexual abuse. We resolve appellant's first issue against him.

Second Issue

In his second issue appellant argues that the trial court erred when it allowed a witness to bolster the testimony of the complainant. We review a trial court's ruling on evidentiary matters under an abuse of discretion standard. Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). We will uphold the ruling if the ruling is reasonably supported by the record and is correct under any theory of law applicable to the case. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). If the trial court's ruling was "within the zone of reasonable disagreement," we must uphold the ruling. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

Appellant's second issue arises from the testimony of Patricia Guardiola, a forensic interviewer with the Dallas Children's Advocacy Center who interviewed A.L. about the sexual abuse. Guardiola described her training and the technique she uses to conduct interviews. She was asked to describe "some red flags that a child would be making up a story on her own or coached by an adult to say something." She responded, "We have seen-some of the red flags are the child not being able to answer in more detail, not being able to give sensory detail or just repeating the same-the same version, their same story exactly over and over." Guardiola then testified that she did not observe any red flags in this case, and appellant's bolstering objection was overruled:

Q. Okay. Were there any red flags that presented themselves in this case?
[Appellant's counsel]: Judge, objection as to improper bolstering of the-
THE COURT: Overruled.
[Appellant's counsel]: -statement of the victim.
THE COURT: Overruled.
A. No.

On cross-examination appellant's counsel asked Guardiola, "[W]ould using inappropriate words for their age be a sign of coaching?" Guardiola answered, "Yes." Guardiola then testified that A.L. used the word "penetrate" during her interview. Guardiola did not testify about any details of the abuse and was not asked whether she believed that A.L. was telling the truth.

On appeal appellant argues that the trial court erred when it allowed Guardiola to testify that she did not observe any red flags because that testimony constituted improper bolstering of A.L.'s credibility. We disagree.

An expert's testimony that a child witness is truthful is inadmissible under Texas Rule of Evidence 702 "because it 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." Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993) (emphases in original, internal quotation omitted). But an expert's opinion on signs of coaching or manipulation may assist the trier of fact and may therefore be admissible. See, e.g., Schutz v. State, 957 S.W.2d 52, 73 (Tex. Crim. App. 1997) ("We hold that [the expert's] testimony that the complainant did not exhibit the traits of manipulation did not constitute a direct comment upon the truth of the complainant's allegations."). In this case Guardiola essentially opined that A.L. did not exhibit signs of manipulation or coaching. As a result, we cannot conclude that the trial court abused its discretion when it overruled appellant's objection and allowed Guardiola to answer the question about whether she observed any "red flags" in this case. See id. We resolve appellant's second issue against him.

Conclusion

We resolve appellant's two issues against him and affirm.

ELIZABETH LANG-MIERS

JUSTICE

Do Not Publish

Tex. R. App. P. 47

111096F.U05

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOSE LUIS VASQUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

No. 05-11-01096-CR

Appeal from the Criminal District Court No. 2 of Dallas County, Texas. (Tr.Ct.No. F10- 58849-I).

Opinion delivered by Justice Lang-Miers, Justices O'Neill and Richter participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered August 2, 2012.

ELIZABETH LANG-MIERS

JUSTICE