                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 ROBERT ANTHONY CANTU,                           §
                                                                 No. 08-12-00348-CR
                              Appellant,         §
                                                                    Appeal from the
 v.                                              §
                                                                  243rd District Court
 THE STATE OF TEXAS,                             §
                                                               of El Paso County, Texas
                              Appellee.          §
                                                                 (TC# 20090D05872)
                                                 §

                                           OPINION

       Appellant Robert Anthony Cantu appeals his conviction for sexual assault of a child. The

jury found Appellant guilty of sexually assaulting A.M. by penetrating her sexual organ with his

finger, but not guilty of sexually assaulting A.M. by causing her sexual organ to contact his mouth.

See TEX. PENAL CODE ANN. § 22.011(a)(2)(A, C). The trial court assessed punishment at two

years’ confinement.

       As in many sexual assault cases, the child, A.M., was the only witness to the crime to

testify. Appellant attacked A.M’s credibility at trial, arguing she was delusional or simply

fabricating the assault for some unknown reason. The trial court allowed the State to buttress its

case by allowing two police detectives to testify A.M. was credible. The State concedes this was

error, but argues the error was harmless. After conducting a full harm analysis of the entire
record, we agree the error was harmless and affirm the conviction.

                                       FACTUAL BACKGROUND

         A.M.’s father and Appellant Robert Cantu were close friends. On the evening of March 8,

2009, A.M. spent the night at the Cantu residence.1 A.M. fell asleep on the couch while watching

television in the living room. A.M. testified that sometime after 3 a.m., she awoke to find

Appellant with his mouth on her vagina. When A.M. asked what he was doing, Appellant

stopped and left the room without responding. A.M. testified that although she felt weird, dirty,

confused, and scared, she turned over and fell back asleep. Later, A.M. awoke to find Appellant

with his hand down the front of her pants and his fingers inside her labia. When A.M. told

Appellant to stop, he replied that “he had already been down there,” that he loved her, and that she

should give him a goodnight kiss.2 A.M. told Appellant to “just go to bed,” and Appellant left and

went into the kitchen.

          A.M. went to the bathroom and washed herself because she felt “gross.” A.M. started to

make an emergency 911 call, but when her cell phone beeped loudly, she did not complete the call,

fearing Appellant would hear her calling for help. A.M., wearing only her sleeping clothes and

socks, then left the house by going through the dog door backwards, so she could watch Appellant,

who was asleep, and because it was quieter than using the other doors. A.M. climbed over the

backyard rock wall, injuring herself in the process, and walked through the desert to the street and

called 911.3



1
  A.M. was 14 years’ old at the time.
2
  A.M.’s sister testified about a prior incident when she spent the night at the Cantu residence in 2007 and awoke to
find Appellant lying on top of her with his head on her lap. When she retreated to a bedroom, Appellant followed,
telling her “I love you[.]”
3
  A redacted version of the 911 audio recording was played for the jury who heard A.M. telling the operator that she
woke up to find Appellant’s hand in her privates.
                                                         2
        Detective Alejandro Alvarez was dispatched to the scene. He found A.M. on the sidewalk

at the corner. He observed that A.M. was not wearing any shoes and was also without a jacket on

a cold morning. A.M. asked the officers to move their vehicle away from the residence because

she did not want Appellant to see her talking with them. A.M. related what had happened to

Detective Alvarez. Over objection, Detective Alvarez testified that he found A.M. credible.

        After interviewing A.M., Alvarez went to the Cantu residence and spoke to Appellant,

informing him of the allegations, which Appellant denied. He observed that Appellant did not

appear surprised that A.M. was not in the house. After conducting his investigation, Alvarez took

A.M. to the hospital for a rape exam. The examination and the subsequent lab testing did not

disclose any physical evidence such as injuries to A.M.’s vagina or the presence of foreign DNA.4

        Detective Nevarez with the Crimes Against Children Unit interviewed A.M. about one

month after the sexual assault. During the interview, A.M. told Detective Nevarez what had

happened. Over objection, Detective Nevarez testified that she thought A.M. was telling the truth

and that she found A.M. to be credible.

                                   THE STATE CONCEDES ERROR

        In four related issues, Appellant complains the trial court abused its discretion in admitting

the following testimony of Detective Alvarez and Detective Nevarez that A.M was truthful and

credible:

[Detective Alvarez]


4
  The sexual-assault nurse examiner observed small abrasions on A.M.’s wrist and calf and a bruise on A.M.’s leg, but
did not observe any injuries to A.M.’s vagina. A.M.’s genital area was swabbed for dried saliva to collect DNA, but
the nurse testified that she would not expect to find DNA evidence because A.M. had washed herself. Subsequent
testing did not disclose any semen and found only A.M.’s DNA in the samples. The analyst testified that she would
not expect to find another person’s DNA in a sample where the victim had washed herself, urinated, and cleaned up the
area where the DNA was collected.

                                                         3
               Q: After interviewing [A.M.], the victim, noticing her demeanor,
               how she was acting, talking to the defendant, his family and her and
               her family, did you believe the victim?

                              …[objection and intervening argument]

               Q: Detective Alvarez, after interviewing the complaining witness,
               did you find her credible?

               A: Yes, I did.

[Detective Nevarez]

               Q: Okay. You had an opportunity to sit down with [A.M.],
               observe her demeanor, did you think she was telling the truth?

               A: Yes.

                                           …[objection]

               The Witness: Yes, I did. I found her to be credible.

       Appellant argues this testimony was erroneously admitted because a witness may not give

a direct opinion as to the truthfulness of another witness. We agree, and the State concedes that

admission of this testimony was error. As we have previously noted, both lay and expert opinions

as to the truthfulness of another witness invade the province of the jury and are inadmissible.

Arzaga v. State, 86 S.W.3d 767, 776 (Tex.App. – El Paso 2002, no pet.) (a direct opinion as to the

truthfulness of another witness “is inadmissible because it does more than assist the trier of fact to

understand the evidence or to determine a fact in issue; it impermissibly decides an issue for the

jury”); see Brookins v. State, No. 08-10-00242-CR, 2011 WL 6357786, at *2 (Tex.App. – El Paso

Dec. 14, 2011, pet. ref’d) (“A witness may not give a direct opinion as to the truthfulness of

another witness.”); see also Barshaw v. State, 342 S.W.3d 91, 93 (Tex.Crim.App. 2011) (expert

testimony that a particular class of persons to which the victim belongs is truthful is inadmissible);


                                                  4
Yount v. State, 872 S.W.2d 706, 712 (Tex.Crim.App. 1993) (“We hold that Rule 702 does not

permit an expert to give an opinion that the complainant or class of persons to which the

complainant belongs is truthful.”).

                                        HARM ANALYSIS

        Thus, we proceed to determine if the admission of this testimony was harmful to Appellant.

The erroneous admission of testimony regarding the truthfulness of a witness is non-constitutional

error, which must be disregarded unless it affected the defendant’s substantial rights.             See

Barshaw, 342 S.W.3d at 93; see also TEX.R.APP.P. 44.2(b). We must reverse a conviction for

non-constitutional error if we have “grave doubt” that the result of the trial was free from the

substantial effect of the error. Barshaw, 342 S.W.3d at 94. On the other hand, we will not

reverse if, after examining the record as a whole, we have fair assurance that the error did not

influence the jury or influenced the jury only slightly. Id. at 93. Our focus is not on whether the

outcome of the trial was proper despite the error, but whether the error had a substantial or

injurious effect on the jury’s verdict. Id. at 93-94. In assessing the likelihood that the jury’s

decision was improperly influenced, we must make “a full harm analysis based on the entirety of

the record[.]” Id. at 96. In doing so, we examine everything in the record, including any

testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence

supporting the verdict, the character of the error and how it relates to the other evidence in the case,

the theory of the prosecution and defense, the jury instructions, the closing arguments, and whether

the state emphasized the error. Id. at 94.

        Appellant argues “this was an extremely close case,” as shown by its procedural history.

He points out that the first attempt to try this case ended in mistrial after the jury could not reach a


                                                   5
verdict, despite being given an Allen charge.5 Then, in the second trial the jury reached a verdict

only after first indicating they were deadlocked. Appellant also notes the jury reached what he

describes as a “solomonesque verdict,” finding him guilty on the penetration count but not guilty

on the contact count. Appellant also points out the verdict was unsupported by any physical

evidence and thus turned on the credibility of the complaining witness. He contends this “case

stood on a razor’s edge, and even with double bolstering of the complaining witness, barely fell on

the State’s side.” He asserts the State compounded the error when it argued in closing:

                  You also got to hear from Detective Alvarez, Crimes Against
                  Children detective. He said yes, I talked to her at the time I got a
                  chance to look at her she seemed credible. Detective Nevarez, I got
                  [a] chance to look at her at the time, I believed her.6

         Appellant is correct that A.M.’s credibility was a key issue due to the absence of

corroborating evidence such as physical evidence or eyewitness testimony. See Rhodes v. State,

308 S.W.3d 6, 11 (Tex.App. – Eastland 2009, pet. dism’d) (recognizing credibility was a key issue

“because of the absence of corroborating evidence such as physical evidence or eye-witness

testimony”). That the case against Appellant rested on the credibility of the complainant,

however, “is significant, but it is not conclusive.”                  Schutz v. State, 63 S.W.3d 442, 446

(Tex.Crim.App. 2001).

         The inadmissible testimony here was only a small portion of a large amount of evidence

presented to the jury from which it could have considered in assessing A.M.’s credibility. “Even

in cases in which credibility is paramount, Texas courts have found harmless error when the

inadmissible expert testimony was only a small portion of a large amount of evidence presented

5
  Allen v. U.S., 164 U.S. 492 (1896).
6
  We also note the State argued earlier: “you’ve heard two detectives that [sic] testified about [A.M.’s] credibility.”
And, later the State indirectly argued that it had produced witnesses “who never met [A.M.] before in their life, and
they said I believe that little girl, and I think you believe her too.”
                                                          6
that the jury could have considered in assessing the victim’s credibility.” Barshaw, 342 S.W.3d

at 96; see Schutz, 63 S.W.3d at 446 (“Suffice it to say, the inadmissible expert testimony was a

small portion of a large amount of evidence presented that the jury could have considered in

assessing the victim’s credibility.”). This was not a case in which a young child testifies briefly

about the crime and is subject to little or no cross-examination. A.M. was 17 at the time of trial

and testified at length on exactly what happened that night, giving the jury a significant

opportunity to see, hear, and judge her credibility from her testimony alone. The jury was also

able to test A.M.’s credibility by comparing her testimony with the accounts of the events she gave

to Detective Alvarez, Detective Nevarez, the sexual assault nurse, and the 911 operator.

Moreover, defense counsel subjected A.M. to a lengthy and rigorous cross-examination that

probed deeply into the various inconsistencies in A.M.’s story. By comparison, the statements of

Detective Alvarez and Detective Nevarez were short and to the point, and made without

elaboration.7 See Rhodes, 308 S.W.3d at 11 (where the court found the error harmless in part

because the witness answered only two questions affirmatively and without elaboration).

Because the jury had ample opportunity to judge A.M.’s credibility from evidence independent of

the detectives’ opinions as to her truthfulness, we conclude the evidence did not have a substantial

or injurious effect or influence in determining the jury’s verdict. See Arzaga, 86 S.W.3d at 777

(concluding there was no harm because the jury had ample opportunity to judge the credibility of

the witness independent of the erroneously-admitted opinion on truthfulness).




7
  We note that generally those cases in which the courts have found harm have involved rather extensive scientific and
statistical testimony from expert witnesses regarding the truthfulness of sexual abuse victims. See, e.g., Wiseman v.
State, 394 S.W.3d 582, 584-86 (Tex.App. – Dallas 2012, pet. ref’d) (where expert witness gave a “statistical opinion
on the truthfulness of sexual abuse complainants”).
                                                          7
       Likewise, the prosecutor’s reference in closing argument to Detectives Alvarez’ and

Nevarez’ testimony that they found A.M. truthful and credible, was but a small portion of the

prosecutor’s closing, which emphasized all the other reasons the jury should believe A.M. See

Rhodes, 308 S.W.3d at 11 (where the court found the error harmless in part because the State’s

closing argument primarily addressed other reasons the complainant was credible and made only

minimal reference to the improper testimony).          The prosecutor emphasized instead the

consistency of A.M.’s story, the 911 call, the sexual assault nurse testimony, the medical records,

and the testimony of A.M.’s sister about experiencing a similar incident with Appellant.

Although the prosecutor’s reference may have arguably had some tendency to reinforce the

improper testimony, the jury was properly instructed that it was the exclusive judge of witness

credibility. See Barshaw, 342 S.W.3d at 96 (noting the jury was instructed that it was the sole

judge of the witnesses’ credibility); Brookins, 2011 WL 6357786, at *3.

       But, most important, Appellant’s reliance on the jury finding him guilty on the penetration

case but not guilty on the contact case is misplaced. In fact, the jury’s acquittal in one case and

conviction in the other shows the jury did not unconditionally believe the complainant and did not

allow the testimony as to her credibility to supplant its own decision. The Court of Criminal

Appeals addressed this issue in Schutz v. State. There, the appellant was tried for aggravated

sexual assault of his six-year-old daughter, and the trial court erred in allowing expert testimony

concerning the truthfulness of the complainant. 63 S.W.3d at 443. The jury acquitted the

appellant of aggravated sexual assault by penetration and convicted him of aggravated sexual

assault by contact. Id. In analyzing the harm analysis performed by the court below, the Court

of Criminal Appeals noted the jury had acquitted the appellant in one case and convicted him in


                                                8
another, “so it is apparent that the jury believed some of the complainant’s testimony but not all of

it[.]” Id. at 445. The Court recognized that even though this inconsistency could be explained

away by reasoning there was more evidence to support a conviction on the contact charge than on

the penetration charge, “the acquittal nevertheless shows that the jury did not unconditionally

believe the complainant” and “is inconsistent with an acceptance of the child’s credibility.” Id.

Consequently, “[g]iven the significance of the acquittal, the record does not support a finding that

the jury allowed the expert testimony [as to the complainant’s truthfulness] to supplant its own

decision.”   Id.      Likewise in the present case, the jury’s acquittal on the contact count

demonstrated that the erroneously-admitted testimony did not supplant its own decision regarding

A.M.’s credibility.

                                         CONCLUSION

       After conducting a full harm analysis of the entire record, we conclude the

erroneously-admitted testimony did not affect Appellant’s substantial rights and the error was

harmless. We overrule all of Appellant’s issues and affirm the conviction.

       The trial court certified Appellant’s right to appeal in this case, but the certification does

not bear Appellant’s signature indicating that he was informed of his rights to appeal and file a pro

se petition for discretionary review with the Texas Court of Criminal Appeals. See TEX.R.APP.P.

25.2(d). The certification is defective. To remedy this defect, this Court ORDERS Appellant’s

attorney, pursuant to TEX.R.APP.P. 48.4, to send Appellant a copy of this opinion and this Court’s

judgment, to notify Appellant of his right to file a pro se petition for discretionary review, and to

inform Appellant of the applicable deadlines. See TEX.R.APP.P. 48.4, 68. Appellant’s attorney

is further ORDERED to comply with all of the requirements of TEX.R.APP.P. 48.4.


                                                 9
                                           STEVEN L. HUGHES, Justice

January 30, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




                                             10
