AFFIRM; and Opinion Filed May 14, 2015.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-00900-CR

                           ISRAEL JOSE BALDERAS, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 283rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1333607-T

                             MEMORANDUM OPINION
                          Before Justices Bridges, Fillmore, and Brown
                                  Opinion by Justice Fillmore
       A jury convicted Israel Jose Balderas of aggravated sexual assault of a child and assessed

punishment of fifty years’ imprisonment. Balderas asserts his right to confrontation was violated

by the admission of the contents of a forensic interview of the child because the child did not

testify at trial and was not found incompetent or unavailable, and he had no opportunity to cross-

examine the child prior to the admission of the evidence. We affirm the trial court’s judgment.

                                          Background

       On October 24, 2012, Elizabeth Fonseca was caring for her three-month-old niece at the

apartment Balderas shared with Fonseca’s sister, Aleida Toscana, who also went by Layla.

Balderas was the father of Fonseca’s niece. Balderas also had another child, A.B., who had

turned four years old on October 7, 2012. A.B.’s mother was Nancy Perez.
       According to Fonseca, A.B. was in the bedroom with Balderas. When A.B. came out of

the bedroom, she told Fonseca that Balderas had put his “wee wee” on her “cookie.” Fonseca

was shocked and immediately contacted Toscana.          Toscana, who was at work, instructed

Balderas to pick her up. Toscana took Balderas to his mother’s house and then took A.B. to

Perez’s house. A.B. told both Toscana and Perez something “consistent” with what Toscana had

learned from Fonseca.

       Perez took A.B. to Children’s Medical Center for evaluation. Dr. Matthew Cox, a

pediatrician and the medical director of the Referral and Evaluation of At-Risk Children Program

at the hospital, examined A.B. When Cox asked A.B. what happened, she responded, “I hurted,”

but did not describe what acts caused the pain. Perez told Cox that A.B. “told her stepmother

that Daddy put his wee wee on her.” A.B.’s examination was normal and did not show any

injury to her genitals or signs of infection. Cox took buccal, anal, and vaginal swabs of A.B.

A.B.’s medical records were admitted into evidence and indicated A.B. told both her

“stepmother” and her mother that “Daddy put his weewee on her.” The records also indicate

Perez told hospital personnel that A.B. said her biological father “put his wee-wee in” me while

they were “in the bed,” and “I started crying.”

       Amy Smuts, a forensic analyst at the University of Texas Health Science Center for

Human Identification, testified she analyzed the swabs obtained during A.B.’s examination as

well as a buccal swab obtained from Balderas. There was DNA that contained sperm on the

vaginal swabs taken during A.B.’s examination. Smuts separated the DNA into a sperm fraction

and an epithelial fraction and obtained a DNA profile from the sperm fraction. Smuts compared

this DNA profile to the DNA profile obtained from Balderas’s buccal swab. According to

Smuts, Balderas could not be excluded as the contributor of the sperm fraction obtained from




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A.B.’s vaginal swabs and, statistically, one person in approximately 276.4 quadrillion

Southwestern Hispanics would be expected to have that DNA profile.

          Patricia Guardiola, the statutory outcry witness, 1 conducted a forensic interview of A.B.

at the Dallas Children’s Advocacy Center on October 26, 2012. A.B. told Guardiola that her

“Daddy” put his wee wee on her body. A.B. did not have a word for the area of her body where

this occurred, but she pointed at and grabbed her vagina. Guardiola also showed A.B. pictures of

a boy and a girl. A.B. was able to identify certain body parts on the drawing of the girl, such as

the eyes, hands, and feet. A.B. did not have a word for other body parts, such as the nipples and

the vagina. Guardiola called A.B.’s attention to the vagina on the drawing and asked A.B. if

something had happened to her there. A.B. responded that her “Daddy” put his wee wee there,

she cried when it happened, and it hurt. Guardiola showed A.B. the picture of the boy and asked

where the wee wee was on the drawing. A.B. pointed to the boy’s penis.

          Guardiola interviewed A.B. again on November 21, 2012, because the police had learned

A.B. called more than one person “Daddy.” Guardiola asked A.B. if she remembered what she

said about “Daddy,” and A.B. responded, “yes, Daddy touched my wee wee.” Guardiola asked

A.B. if “Daddy” had a different name, and A.B. responded “Daddy Israel.” Guardiola asked

A.B. if “Daddy Israel” was the person who put his wee wee on her body, and A.B. responded,

“yes.”

          The jury found Balderas guilty of aggravated assault of a child. After the jury began

deliberating in the punishment phase of the trial, the trial court stated that, prior to starting trial,

there was a discussion in chambers “about the State proceeding without calling the complaining

witness.” Balderas’s counsel had indicated he would object “to that,” and the trial court had


     1
       See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2 (West Supp. 2014). After a pre-trial hearing, Balderas’s counsel agreed Guardiola was
the proper statutory outcry witness.



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assured counsel that he would have an opportunity to place the objection on the record.

Balderas’s counsel then stated:

          I think it was that obviously the child had details that she told to the sister who
          then she later shared with a person we know as Layla and in the presence of my
          client. So there are other details about her demeanor, things that could have only
          been really directly adduced and presented to the jury if she were here to testify.

          And my objection would be that it’s a violation of Crawford not to produce – not
          to have allowed my client to have the confrontation clause met by seeing his
          actual accuser in court. Even though other witnesses testified about the elements
          of the offense through outcry witnesses and such, there were times that she
          answered, “I don’t know. I don’t know,” to questions adduced by the forensic
          interviewer supposedly in the presence of my client as well as that morning.

          So, you know, we in effect feel like my client was denied confrontation aspect.

The trial court then confirmed Balderas’s counsel was aware that A.B. had been present in the

building during trial.

                                                               Analysis

          In one issue, Balderas contends his right under the Sixth Amendment of the United States

Constitution to confront the witnesses against him was violated when “evidence of the contents

of a forensic interview” with A.B. was admitted into evidence when A.B. was not called to

testify, was not found incompetent or unavailable to testify, and had not been cross-examined by

the defense prior to the admission of the evidence. 2

          To preserve a complaint for appellate review, the record must show a specific and timely

complaint was made in the trial court and the trial court ruled on the complaint. Clark v. State,

365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see also TEX. R. APP. P. 33.1(a). In order to

preserve error, the complaining party must have informed the trial court what was wanted, and

why the party was entitled to it. Clark, 365 S.W.3d at 339. The specificity requirement is met if

     2
       The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him[.]” U.S. CONST. amend VI. The Confrontation Clause was made applicable to the States through the Fourteenth
Amendment. Pointer v. Texas, 380 U.S. 400, 403, 406 (1965).



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the complaint made at trial was clear enough so as to permit the trial judge to take corrective

action when the complaint was made. Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App.

2009). The purpose of requiring a specific objection in the trial court is twofold: (1) to inform

the trial judge of the basis of the objection and give him the opportunity to rule on it; and (2) to

give opposing counsel the opportunity to respond to the complaint. Resendez v. State, 306

S.W.3d 308, 312 (Tex. Crim. App. 2009). A complaint is not preserved if the legal basis of the

complaint on appeal varies from the complaint at trial. Lovill, 319 S.W.3d at 691–92.

       Balderas complains on appeal that the admission of the contents of the forensic interview

with A.B. violated his right to confrontation because A.B. did not testify and was not found to be

incompetent or unavailable, and he did not have the opportunity to cross-examine her before the

evidence was admitted. However, at trial, Balderas objected his right to confrontation was

violated by the State’s failure to call A.B. Balderas’s counsel agreed Guardiola was the proper

outcry witness and did not object to Guardiola testifying because A.B. had not testified or

because, in the absence of A.B.’s testimony, Guardiola’s testimony violated his right to

confrontation. See Reyna v. State, 168 S.W.3d 173, 179–80 (Tex. Crim. App. 2005) ( defendant

waives his constitutional right to confront witnesses if he does not timely object to testimony on

that ground); Deener v. State, 214 S.W.3d 522, 527 (Tex. App.—Dallas 2006, pet. ref’d) (right to

confrontation is forfeitable right and must be preserved by timely and specific objection at trial).

Because Balderas’s complaint at trial does not comport with his issue on appeal, he has failed to

preserve the issue for appellate review. See TEX. R. APP. P. 33.1(a); Clark, 365 S.W.3d at 340

(appellant failed to preserve complaint for review when trial objection did not comport with issue

raised on appeal).

       Further, even if we construe Balderas’s trial objection to encompass Guardiola’s

testimony about A.B.’s statements during the forensic interview and assume the trial court erred

                                                –5–
by admitting that testimony, we cannot conclude Balderas was harmed.             A violation of a

defendant’s right to confrontation is subject to a harmless error analysis. Rubio v. State, 241

S.W.3d 1, 3 (Tex. Crim. App. 2007). If the appellate record reveals constitutional error that is

subject to harmless error review, we will reverse the trial court’s judgment unless we determine

beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

TEX. R. APP. P. 44.2(a); Rubio, 241 S.W.3d at 3.

       In conducting a rule 44.2(a) harm analysis, our primary question is whether there is a

reasonable possibility or likelihood the error might have contributed to the conviction. Rubio,

241 S.W.3d at 3; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g).

This requires us to assess the likelihood the error was a contributing factor in the jury’s

deliberations and decision. Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010)

(quoting Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007)). We do not focus on the

propriety of the jury’s verdict. Id. Nor does our analysis turn on whether the jury’s verdict was

supported by the evidence. Id. Instead, the question is whether the alleged constitutional error

adversely affected the integrity of the process leading to the conviction. Id. Thus, evidence

admitted in violation of the Confrontation Clause does not require reversal unless there is a

reasonable possibility that, within the context of the entire trial, the perceived error “moved the

jury from a state of non-persuasion to one of persuasion on a particular issue.” Id.

       In evaluating a claim that an out-of-court statement admitted at trial violated the

defendant’s right to confrontation, we may consider: (1) the statement’s importance to the State’s

case; (2) whether the statement was cumulative of other evidence; (3) the presence or absence of

evidence corroborating or contradicting the out-of-court statement on material points; (4) the

overall strength of the State’s case; (5) the source and nature of the error; (6) to what extent, if

any, the statement was emphasized by the State; and (7) how much weight the jury may have

                                                –6–
assigned the inadmissible statement compared to the balance of the evidence with respect to the

element or defensive issue to which it is relevant. Id.

       Here, the State’s case against Balderas was strong and did not hinge on the evidence

pertaining to Guardiola’s forensic interview of A.B. Smuts testified sperm was found on the

vaginal swabs taken by Cox during his examination of A.B. Smuts obtained a DNA profile from

that sperm, compared it to a DNA profile obtained from Balderas’s buccal swab, and determined

that Balderas could not be excluded as the contributor of the DNA in the sperm. According to

Smuts, only one person in 276.4 quadrillion Southwestern Hispanics is expected to have that

DNA profile. Further, the contents of the forensic interview were cumulative of the same or

similar evidence admitted elsewhere at trial without objection. See Sanders v. State, 422 S.W.3d

809, 817–18 (Tex. App.—Fort Worth 2014, pet. ref’d) (concluding any error in admission of

statement in violation of defendant’s right to confrontation was harmless in view of

uncontroverted other, unobjected-to evidence that established same facts). Fonseca testified

A.B. told her Balderas put his wee wee on her cookie. Toscana testified A.B. told her something

that was consistent with what Fonseca had heard from A.B. Perez told Cox that A.B. had said

her “Daddy” put his wee wee on her. A.B.’s medical records also indicated A.B. had said her

“Daddy” put his wee wee in her while they were in the bed, that it hurt, and she cried. Finally,

although the State mentioned Guardiola’s testimony in closing argument, it emphasized the

results of the DNA testing established that Balderas sexually assaulted A.B., arguing “[t]hat

piece of evidence on top of everything else is impossible to get past, absolutely impossible.”

Assuming the admission of Guardiola’s testimony about her forensic interview of A.B. violated

Balderas’s right to confront the witnesses against him, we conclude beyond a reasonable doubt

that the error could not have contributed to Balderas’s conviction or punishment. See TEX. R.

APP. P. 44.2(a).

                                                –7–
       We resolve Balderas’s sole issue against him and affirm the trial court’s judgment.




                                                    /Robert M. Fillmore/
                                                    ROBERT M. FILLMORE
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47

140900F.U05




                                              –8–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ISRAEL JOSE BALDERAS, Appellant                      On Appeal from the 283rd Judicial District
                                                     Court, Dallas County, Texas,
No. 05-14-00900-CR        V.                         Trial Court Cause No. F-1333607-T.
                                                     Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                         Justices Bridges and Brown participating.

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


Judgment entered this 14th day of May, 2015.




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