                                NO. 12-10-00045-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

EFRAIN CONTRERAS,                                §           APPEAL FROM THE 241ST
APPELLANT

V.                                               §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §           SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Efrain Contreras appeals his conviction for aggravated sexual assault of a child. In his
sole issue on appeal, he argues that the trial court erred by allowing impermissible testimony on
the ultimate issue of guilt. We affirm.


                                          BACKGROUND
       In May 2009, Orkuidia Miller, a City Finance employee, attempted to collect money for
her employer at the home of the borrower. When she arrived, Miller observed Appellant, whom
she had recognized from other unrelated transactions at her place of employment, touching a
child‘s buttocks and ―private parts‖ in a ―very perverted way‖ while attempting to pull the child on
top of him. She also saw a woman near Appellant and the child. According to Miller, the
woman could see Appellant‘s conduct and seemed unconcerned.
       Miller, however, was concerned and contacted police. Officer Mark Lee of the Tyler
Police Department arrived at the home. It was determined that the child was the woman‘s six year
old daughter. Based on Officer Lee‘s preliminary findings, a formal investigation ensued.
Michelle Brock, a detective in the major crimes and crimes against children division of the Tyler
Police Department, led the investigation. Nurse Susan Hinson conducted a sexual assault nurse
examination (SANE) on the child. Rebecca Cunio conducted a forensic interview with the child
at the Children‘s Advocacy Center (CAC). During the interview, the child implicated Appellant
in acts of sexual abuse against her. The child‘s mother was also interviewed and stated that she
often prostituted herself while her children were lying on the same bed with her and the client.
She also stated that Appellant was a frequent client and that she had observed him contact or
penetrate her daughter‘s vagina with his penis on at least one other occasion.
        Appellant was arrested and later indicted for the offense of aggravated sexual assault of a
child. He entered a plea of ―not guilty,‖ and was later tried, convicted, and sentenced by a jury to
life imprisonment. This appeal followed.


                                    IMPERMISSIBLE TESTIMONY
        In his sole issue, Appellant argues that ―the trial court erred by allowing impermissible
testimony on the ultimate issue of guilt.‖
Standard of Review
        A trial court‘s decision to admit evidence over an objection is reviewed for abuse of
discretion. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). If the decision of
the trial court is within the zone of reasonable disagreement and was correct under any theory of
law applicable to the case, it will be upheld on appeal. Montgomery v. State, 810 S.W.2d 372,
391 (Tex. Crim. App. 1990).
Applicable Law
        To preserve an admissibility of evidence complaint for our review, a party must have
presented to the trial court a timely request, objection, or motion that states the specific grounds for
the desired ruling. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a); see also Martinez v. State,
22 S.W.3d 504, 507 (Tex. Crim. App. 2000). Should a party fail to do so, any error in the
admission of the evidence is not preserved and the complaint is waived. Martinez, 22 S.W.3d at
507. Moreover, to preserve a complaint for appellate review, the issue on appeal must comport
with the objection raised at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
        Rules 33.1 and 103 are ―judge protecting‖ rules of error preservation. See Martinez v.
State, 91 S.W.3d 331, 335 (Tex. Crim. App. 2002). The basic principle of both rules is that of
―party responsibility.‖ Id. Thus, the party complaining on appeal about a trial court‘s admission
of evidence must, at the earliest opportunity, have done everything necessary to bring to the trial



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court‘s attention the rule in question and its precise and proper application to the evidence in
question. Id. at 335-36. Timely and specific objections inform the trial court of the basis of the
objection and afford it the opportunity to rule on them, and also afford opposing counsel with the
opportunity to remove the objection or supply other testimony. Id. at 336. Specific objections
are necessary because they promote the prevention and correction of errors such that the judicial
system and the parties are not burdened by unnecessary appeals and retrials when the error could
have been corrected by a timely and specific objection at trial. Id.
       An ―invading the province of the jury‖ objection is no longer recognized as a valid
objection. Ortiz v. State, 834 S.W.2d 343, 348 (Tex. Crim. App. 1992) (―invading the province of
the jury‖ no longer valid objection to opinion testimony); Mock v. State, 848 S.W.2d 215, 225
(Tex. App.–El Paso 1992, pet. ref‘d); see also TEX. R. EVID. 704. ―The doctrine which prohibited
testimony that would invade the province of the jury ‗is and has been long dead‘ as a proposition of
law.‖ Mays v. State, 563 S.W.2d 260, 263 (Tex. Crim. App. 1978) (quoting Boyde v. State, 513
S.W.3d 588, 590 (Tex. Crim. App. 1974)).
       The erroneous admission of expert testimony that the victim is telling the truth in a sexual
assault case is nonconstitutional error.     See Barshaw v. State, No. PD-1615-10, 2011 WL
2555661, at *1-2 (Tex. Crim. App. June 29, 2011) (slip. op.); see also Schutz v. State, 63 S.W.3d
442, 444 (Tex. Crim. App. 2001). A nonconstitutional error must be disregarded unless it affects
the defendant‘s substantial rights. TEX. R. EVID. 103(a); TEX. R. APP. P. 44.2(b). This court will
not overturn a criminal conviction for nonconstitutional error if, after examining the record as a
whole, it has ―fair assurance that the error did not influence the jury, or influenced the jury only
slightly.‖ Schutz, 63 S.W.3d at 444. In considering the potential harm, the 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 or influence on the jury‘s verdict. See Barshaw, No. PD-1615-10,
2011 WL 2555661 at *2 (citing Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000)).
A conviction must be reversed for nonconstitutional error if the reviewing court has grave doubt
that the result of the trial was free from the substantial effect of the error. Id. (citing Burnett v.
State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002)). ―Grave doubt‖ means that ―in the judge‘s
mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the
harmlessness of the error.‖ Id. ―[I]n cases of grave doubt as to harmlessness the petitioner must
win.‖ Id.



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       In assessing the likelihood that the jury‘s decision was improperly influenced, the appellate
court must consider everything in the record, including any testimony or physical evidence
admitted for the jury‘s consideration, the nature of the evidence supporting the verdict, and the
character of the alleged error and how it might be considered in connection with other evidence in
the case. Id. (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); Haley v.
State, 173 S.W.3d 510, 518–19 (Tex. Crim. App. 2005)). The reviewing court may also consider
the jury instruction given by the trial judge, the State‘s theory, defensive theories, closing
arguments, voir dire, and whether the State emphasized the error. Id. (citing Motilla v. State, 78
S.W.3d 352, 355–56 (Tex. Crim. App. 2002)).
Discussion
       At trial, Detective Brock testified that during her forensic interview, the child stated that
―Chucky‖ conducted acts of sexual abuse against her. The detective also alluded to the fact that
―Chucky‖ was a doll in a series of popular horror films, and that the child ―projected‖ her abuse
onto the ―Chucky‖ doll in the film franchise when the child was actually referring to Appellant.
       On cross examination, defense counsel elicited testimony from Detective Brock that even
though children often project acts of sexual abuse that actually occurred onto fictional characters,
sometimes both the characters and the alleged abuse are fictional.
       On redirect examination, the State responded to the suggestion by defense counsel that the
child made up the events as follows:

                        [State‘s Counsel:] Now, [defense counsel] asked you, you know,
               sometimes kids will say, you know, the Chucky doll did this; sometimes they‘re
               just making this up. Do you remember that?

                        [Detective Brock:] Yes.

                       [State‘s Counsel:] Let me ask you this just to put it out there. Detective,
               do you believe that [the child] is making this up?

                        [Detective Brock:] I do not.

                        [Defense Counsel:] I‘m going to object, invading the province of the
               jury.

                        [The Court:] The Court overrules the objection. The Court overrules
               the objection based on the cross of the witness. And she‘s allowed to answer that
               question.

                         [State‘s Counsel:] Based on your entire investigation, do you believe
               that the defendant committed the offense of aggravated sexual assault of a child




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               by sticking his penis into [the child‘s] six-year-old vagina?

                         [Defense Counsel:] Your Honor, I object, invading the province of the
               jury.

                         [The Court:] Rephrase that.

                        [State‘s Counsel:] When you say she wasn‘t making this up, did you
               believe the defendant committed this offense?

                         [Defense Counsel:] Same objection.

                        [The Court:] The Court overrules the objection based on the cross of the
               witness. Go ahead.

                         [Detective Brock:] Could you repeat the question?

                       [State‘s Counsel:] Based on your investigation, do you believe that the
               defendant committed the offense of aggravated sexual assault of a child?

                         [Detective Brock:] I do.

                         [State‘s Counsel:] Is there any doubt in your mind about that?

                         [Detective Brock:] No.



       Appellant contends that the admission of this testimony was improper expert testimony on
the ultimate issue of fact to be decided by the jury. See, e.g., Yount v. State, 872 S.W.2d 706, 712
(Tex. Crim. App. 1993); Duckett v. State, 797 S.W.2d 906, 920 (Tex. Crim. App. 1990), overruled
on other grounds, Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993). The State argues,
however, that Appellant‘s ―invading the province of the jury‖ objection was insufficient to
preserve any error in the admission of this testimony.
       Appellant concedes that ―invading the province of the jury‖ is an objection that does not
always preserve error. However, he relies on Woods v. State in arguing that he preserved the
issue for appeal.      See generally Woods v. State, 13 S.W.3d 100 (Tex. App.—Texarkana 2000,
pet. ref‘d). In Woods, the State called six witnesses to testify that they had viewed a surveillance
videotape of a robbery and that, based on their viewing of the videotape, the defendant was the
person shown committing the crime. Three of these witnesses were police officers, and there was
no evidence that they had seen the defendant before trial. Id. at 102-03. The defendant objected
that the testimony of all six witnesses invaded the province of the jury, and also objected to
bolstering.   Id. at 105.      The court held that the objection of bolstering, especially when
accompanied by the objection of invading the province of the jury, preserved error on the question



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of whether the testimony of these witnesses was admissible. See id. at 104-05. The court stated
further that in the context of the objection, invading the province of the jury was ―probably
sufficient to inform the trial court as to the nature of the objection.‖ Id. at 105. But the court‘s
preservation holding was based on both objections taken together. See id.
       The only objection made in the instant case was ―invading the province of the jury.‖
Therefore, Woods is distinguishable from this case. Accordingly, we hold that without an
accompanying timely, specific, and valid objection during the trial that comports with the
argument made on appeal, Appellant‘s ―invading the province of the jury‖ amounts to no objection
at all and preserved nothing for our review. See Ortiz, 834 S.W.2d at 348.
       Even if we were to hold that Appellant preserved error in challenging Detective Brock‘s
testimony, Appellant cannot show that he was harmed by its admission. Miller testified that she
saw Appellant touch the victim in an inappropriate manner. It is clear that without her actions in
contacting the police, the sexual abuse may not have been discovered. The victim testified that
Appellant touched her inappropriately with his hand and that his genitals contacted her genitals on
more than one occasion. The victim‘s mother, a prostitute, admitted that she saw Appellant
grabbing the victim‘s bottom and crotch on the day in question, and that she saw Appellant
penetrate the victim‘s vagina with his penis. All of this testimony corroborated Miller‘s discovery
of sexual abuse.
       There were some variances in the testimony as to whether the victim and Appellant were
clothed or not during the assault and the timing of the assaults. It was also shown that the victim‘s
mother suffered from some sort of cognitive disabilities and that she had a ninth grade education.
She later testified that she used crack cocaine and that she had difficulty remembering the precise
details of the incident in question, but admitted again during recross examination that she
witnessed Appellant touching the victim inappropriately and that she witnessed him attempting to
have intercourse with the victim.
       Nurse Hinson testified that the victim‘s perineum was red and swollen, although, due to the
passage of time, she could not conclude with certainty that it was caused by sexual abuse. Nurse
Hinson also stated that the victim did not make a specific outcry concerning her abuse, but was
allowed to testify to statements made by the victim without objection as follows:


                [These are] her words. I asked her, were there any problems or had she been hurt or was
       there anything going on, and she said, ―Yes. This boy couldn‘t get in our house. He was so mad.



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         My momma told [him], ‗no, you can‘t mess with [my sister].‘ His name is Efrain. She‘s [calling]
         9-1-1, I‘ll call. Efrain hurt [my sister]. He raped her and he needs to go to jail.‖
                   [I asked her,] ―Did you see?‖
                   [She said,] ―Yes. He was pulling his pants, put his wiener in her privates. My sister was
         then somewhere else. He came on the back porch. Then he hit me. My mom saw him and he
         didn‘t listen.‖
                   [I asked her,] ―Happened more than one time?‖
                   [She said,] ―A lot of times. I slapped him. He told me ‗bring my sister out.‘ I told her,
         ‗Sissy, I saved your life.‘ Boogieman, my cousin, said, ‗it was rape.‘ ‖


         Detective Brock also testified without objection that during the CAC interview, the victim
demonstrated vast knowledge of sexual terms and activities, and due to her mother‘s lifestyle and
the family‘s living conditions, it became clear that the victim was ―exposed to porn and sex on a
daily basis.‖ In the interview, the six year old victim described, in shocking detail, the acts
committed against her by Appellant while using derogatory terms that only an adult would know.
Detective Brock quoted the description of the events provided by the victim. Suffice it to say that
the words used to describe the abuse by the victim are so graphic that they need not be repeated
here. Appellant did not object to any of this testimony.
         Additionally, Appellant did not testify, nor did he call any witnesses. The State did
emphasize the complained of testimony when it occurred, and also referenced it during the jury
argument. However, the State discussed not only the complained of evidence, but all of the
testimony from all the witnesses, including the victim, Nurse Hinson, and the victim‘s mother.
The State also reminded the jury members that they decide which witnesses to believe. The
guilt-innocence phase of the trial, including opening statements and jury argument, consumed less
than 160 pages of the reporter‘s record. Having reviewed the entire record as a whole, we are left
with fair assurance that the evidence did not influence the jury, or influenced the jury only slightly.
See Schutz, 63 S.W.3d at 444.
         Appellant‘s sole issue is overruled.


                                                    DISPOSITION
         We affirm the judgment of the trial court.
                                                                    SAM GRIFFITH
                                                                       Justice
Opinion delivered July 29, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

                                              (DO NOT PUBLISH)


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