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

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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).


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        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

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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




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                                       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.




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