                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-14-00148-CR


JAMIE LEE FORD                                                    APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
                     TRIAL COURT NO. CR12-0559

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

      Appellant Jamie Lee Ford appeals his conviction for continuous sexual

abuse of a child under the age of fourteen. See generally Tex. Penal Code Ann.

§ 21.02 (West 2002). In two points, Ford argues that the trial court abused its

discretion by allowing the State’s expert, a sexual assault nurse examiner, to



      1
      See Tex. R. App. P. 47.4.
testify at trial and that the trial court erred by overruling his motion for mistrial.

We will affirm.

                                  II. BACKGROUND

        Because neither of Ford’s points require an entire recitation of the

evidence adduced at trial, we provide only a recitation necessary to dispose of

Ford’s points and to provide context to the reader. Daughter2 told her older friend

a “secret,” alleging that her biological father, Ford, would say he was cleaning her

or checking her for “bumps and bruises,” but Daughter, rather than describing

what would be considered appropriate adult touching, went on to describe what

appeared to be sexual acts. Daughter also told her friend not to tell anyone

because she feared growing up without a dad, but the friend told her own

parents, who went across the street and told Daughter’s mother. When Mother

asked Daughter about what she had told her friend, Daughter told Mother and

the friend’s parents that Ford had been sexually assaulting her for years. Later,

the State indicted Ford for the continuous sexual abuse of a child.

        At trial, Daughter, ten years old at the time, testified that throughout her

first through third grades in elementary school, Ford would have her undress in

his bedroom and lay on the bed. Sometimes he would cover her face and touch

her sexual organ with his hand. Other alleged acts included numerous incidents




        2
        We use aliases when possible to protect the minor child’s identity in this
case.

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of fondling and digital penetration and at least one allegation of penetration of her

mouth with his penis.

      One of the Fords’ neighbors testified that he was reluctant to believe

allegations made against Ford until he witnessed Daughter’s outcry and asked

Daughter if her dad was touching her.           He then believed her.    According to

Neighbor, Daughter “got real upset and turned her face . . . where we could

barely hear her” and said Ford had been touching her. At one point, Neighbor

testified that Daughter was “a stand-up little girl.” When the State asked what he

meant by Daughter being a “stand-up” girl, defense counsel objected that the

State was trying to “boost credibility.”       The trial court instructed the State to

rephrase its question, and the State complied.            After further testimony by

Neighbor that Daughter would “fess up” to mistakes, the State asked if that was

“the kind of thing that makes [Neighbor] think [Daughter was] a stand-up kid?”

Defense counsel then lodged a “boosting credibility” objection, and the trial court

sustained the objection and instructed the jury to disregard the Neighbor’s

answer. Defense counsel then moved for a mistrial, and the trial court denied the

motion.

      The State also introduced the testimony of Rebecca Sullivan, the sexual

assault nurse examiner who had performed a sexual assault exam on Daughter

shortly after Daughter’s outcry.    Sullivan said that she performed a detailed

sexual history interview and exam of Daughter. Sullivan testified that the results

of her exam were normal but that “completely normal” results were seen in 85–


                                           3
95% of children with penetration by any means.        Defense counsel lodged a

reliability objection to the State’s witness, and the trial court overruled the

objection.

      The jury returned a verdict of guilty and assessed punishment at thirty-

seven years’ incarceration. The trial court entered judgment accordingly, and

this appeal followed.

                                   III. DISCUSSION

      In his first point, Ford argues that the trial court abused its discretion by

allowing the State to introduce “testimony under the medical records exception.”

Specifically, Ford argues that the trial court erred by improperly admitting

“medical records . . . concerning the sexual assault examination conducted

months after the alleged assaults . . . for the reason stated in this Court’s

decision in Salinas v. State.” See 166 S.W.3d 368, 371 (Tex. App.—Fort Worth

2005, pet. ref’d) (holding that expert testimony diagnosing sexual abuse based

on a child's medical history had been erroneously allowed). In short, Ford argues

that the State’s expert witness was impermissibly allowed to testify to the

complainant’s credibility, thereby bolstering it.

      The State counters that Ford’s reliance on Salinas is misplaced because

the expert who testified concerning the medical records in this case “never gave

a diagnosis of sexual abuse” and therefore could not have based her testified-to

diagnosis “merely [upon] a verbal history given to her” by the complainant. We

agree with the State.


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      We review the trial court’s decision to admit or exclude scientific expert

testimony under an abuse of discretion standard. Sexton v. State, 93 S.W.3d 96,

99 (Tex. Crim. App. 2002). The trial court abuses its discretion if it acts without

reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d

372, 380 (Tex. Crim. App. 1991) (op. on reh’g). Thus, we will uphold the trial

court’s decision as long as it is within the zone of reasonable disagreement,

given the evidence presented and the requirements of Rule 702 of the Texas

Rules of Evidence. Sexton, 93 S.W.3d at 99.

      Rule 702 provides that an expert may testify if the expert’s “scientific,

technical, or other specialized knowledge will help the trier of fact to understand

the evidence or to determine a fact in issue.” Tex. R. Evid. 702; Duckett v. State,

797 S.W.2d 906, 914 (Tex. Crim. App. 1990), disapproved on other grounds,

Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993) (noting that to be

admissible, expert testimony must “assist” the trier of fact). Expert testimony

does not assist the jury if it constitutes “a direct opinion on the truthfulness” of a

child complainant’s allegations. Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim.

App. 1993) (holding testimony regarding an opinion of truthfulness “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.”). In other words, an expert may testify

that a child complainant exhibited symptoms consistent with sexual abuse but not

that a complainant is truthful. Cohn, 849 S.W.2d at 818–19; Salinas, 166 S.W.3d

at 370.


                                          5
      Because Ford’s argument is predicated on this court’s decision in Salinas,

a discussion and comparison between Salinas and this case is warranted. 166

S.W.3d at 370.         In Salinas, the complainant testified that the defendant had

digitally penetrated her anus with his finger. Id. The State’s expert testified that,

generally, there will be no physical evidence of the insertion of a finger into the

anus of a six-year-old child. Id. Nevertheless, the expert testified that she had

diagnosed sexual abuse based solely upon the history provided by the

complainant, noting that the complainant’s medical exam results were “consistent

with that history.” Id. That is, the expert “diagnosed sexual abuse by digital

penetration of the anus [solely] because the child told her that digital penetration

had occurred.” Id. This Court held that such testimony was “a direct comment

on the credibility of the complaining witness.” Id. at 371. Accordingly, we held

that “[b]ecause there was no physical indication of digital penetration, [the

expert]’s testimony [could] only be seen as an attempt to directly bolster the

credibility of the complainant and a direct comment on the complainant’s

truthfulness.”   Id.    This Court further stated that “Although [the expert] could

[have] properly testif[ied] that the physical exam was normal, the trial court

abused its discretion in admitting [the expert]’s testimony that she had diagnosed

sexual abuse based on the child’s medical history.” Id.

      In this case, as the State argues, the facts are distinguishable from

Salinas. Here, with respect to any physical findings of sexual assault, the State’s

expert witness testified that the results of her examination of Daughter were


                                           6
consistent with what a medical professional would expect to find based upon

generally accepted scientific literature. Specifically, the State’s expert testified

that she saw no physical signs of sexual abuse and that she was unable to make

a diagnosis of sexual abuse. Thus, unlike in Salinas, the expert witness in this

case made no diagnosis of sexual abuse.

      Because the State’s expert witness in this case never testified directly

about Daughter’s credibility or honesty and because a trial court may admit

expert testimony that a child exhibits physical signs that have been empirically

shown to be common among children who have been sexually abused, including

that the child exhibited no physical signs of sexual abuse at all, the expert

witness did not “bolster” Daughter’s testimony, and the trial court did not abuse

its discretion by allowing the expert to testify. See Salinas, 166 S.W.3d at 370;

compare Reyes v. State, 274 S.W.3d 724, 730 (Tex. App.—San Antonio 2008,

pet. ref’d) (holding that doctor’s testimony about behavioral characteristics

common among abused children was permissible under rule 702 of Texas Rules

of Evidence). We overrule Ford’s first point.

      In his second point, Ford argues that the trial court erred by denying his

motion for mistrial. Other than citing one case standing for the proposition for

when a mistrial is appropriate, Ford does not cite any authority to explain what

his second point of error actually is. See Young v. State, 137 S.W.3d 65, 69, 72

(Tex. Crim. App. 2004) (“A grant of a motion for mistrial should be reserved for

those cases in which an objection could not have prevented, and an instruction to


                                         7
disregard could not cure, the prejudice stemming from an event at trial.”); see

also Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and

to the record.”); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000) (“In

failing to provide any relevant authority suggesting how the judge’s actions

violated any of appellant’s constitutional rights, we find the issue to be

inadequately briefed.”), cert. denied, 532 U.S. 1053 (2001).

      In his brief, Ford does point to a colloquy in the record wherein the

prosecutor asked questions of Neighbor, and Neighbor specifically answered one

of the questions that Daughter is a “stand-up little girl.”     Defense counsel

objected to the line of questioning, stating that the prosecutor was attempting to

“boost credibility.”   The trial court instructed the prosecutor to rephrase the

question, and the prosecutor capitulated.      Later in the same colloquy, the

prosecutor asked the witness whether when other children in the neighborhood

would get in trouble, Daughter would not.      Neighbor answered “Yes.”     Then

again, the prosecutor asked Neighbor if Daughter was involved in “trouble,”

whether Daughter would “fess up that she was doing it, too?” And Neighbor

again answered “Yes.” Yet again, the prosecutor asked Neighbor if this conduct

by Daughter is why he believed Daughter to be a “stand-up kid?” The witness

answered, “Absolutely.” Defense counsel then objected that the prosecutor was

attempting to “boost[] credibility.”   The trial court sustained the objection,




                                         8
instructed the jury to disregard the witness’s answer, and then denied Ford’s

motion for mistrial. See Young, 137 S.W.3d at 72.

      The State argues that this colloquy indicates that Ford failed to timely

object at trial to the evidence he now complains of on appeal because the

question had been asked and answered multiple times prior to and in-between

Ford’s objections.

      It is difficult to understand Ford’s second point because of his failure to

discuss the substance of his complaint.         See Tong, 25 S.W.3d at 710.

Regardless, we agree with the State that Ford has failed to preserve this error for

our review because the witness was allowed to answer the same question

multiple times without Ford objecting. See Dinkins v. State, 894 S.W.2d 330, 355

(Tex. Crim. App.) (“[I]f a question clearly calls for an objectionable response, a

defendant should make an objection before the witness responds.”), cert. denied,

516 U.S. 832 (1995). We overrule Ford’s second point.

                                 IV. CONCLUSION

      Having overruled both of Ford’s points on appeal, we affirm the trial court’s

judgment.

                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 23, 2015

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