              NO. PD-1608-14

                  IN THE

    COURT OF CRIMINAL APPEALS

             AUSTIN, TEXAS


            ARIEL MARTINEZ

                 Petitioner,
                                                JANUARY 16, 2015
                     vs.

          THE STATE OF TEXAS


            Petition for Review of the
             Eighth Court of Appeals
        Judgment in No. 08-12-00191-CR
affirming conviction in Cause No. 20110D00036
      from the 120th Judicial District Court
              El Paso County, Texas


PETITION FOR DISCRETIONARY REVIEW


             Ruben P. Morales
           Attorney for Petitioner
          Texas Bar No. 14419100
              718 Myrtle Ave.
           El Paso, Texas 79901
              915 - 542 - 0388
            915 - 225-5132 fax
           rbnpmrls@gmail.com

       SUBMITTED: January 5, 2015
                                      TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT ..............................................iv

STATEMENT OF THE CASE .................................................................................. v

STATEMENT OF PROCEDURAL HISTORY........................................................ v

GROUNDS FOR REVIEW ....................................................................................... 1

ARGUMENT

        1. Whether the Eighth Court erred in determining that it was not error
        for the State to ask its child forensic interviewer whether or not the
        child was consistent during the forensic interview thus implying that
        the child was being truthful...... ....................................................................... 2

PRAYER FOR RELIEF ............................................................................................ 8

CERTIFICATE OF SERVICE .................................................................................. 8

CERTIFICATE OF COMPLIANCE……………………………………………….9

APPENDIX A Eighth Court Opinion .................................................... Attachment 1




                                                        ii
                                     INDEX OF AUTHORITIES

TEXAS CASES

Alfaro v. State, 2014 WL 1017868, *4(Tex. App. – Dallas 2014, pet. ref’d)……… 6

Arzaga v. State, 86 S.W. 3d 767, 776(Tex. App. – El Paso, 2002 no pet.) .......4, 5, 6

Cohn v. State, 849 S.W.2d 817, 819 (Tex.Crim. App.1993) ..................................... 5

Martinez v. State, 2014 WL 3763649, *2 (Tex. App. – El Paso, 2014) ............v, 4, 6

Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997) .............................4, 5, 6

Yount v. State, 872 S.W.2d 706, 708, 709 (Tex.Crim.App.1993) ............................ 4

CONSTITUTIONS AND STATUTES

TEX. R. APP. P. 66.3(b) ............................................................................................ 4




                                                         iii
              STATEMENT REGARDING ORAL ARGUMENT

      Petitioner believes that oral argument would be helpful to the Court’s

resolution of the issues presented. The issues presented are novel and have not

been addressed by this Court in the context presented by this case.




                                         iv
                          STATEMENT OF THE CASE

        Petitioner was charged with aggravated sexual assault of a child. CR at 3. He

pled not guilty and was tried before a jury. The jury convicted Petitioner and

assessed his punishment at ninety-nine years in prison. CR at 126.

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

        On May 24, 2012, Petitioner timely filed a motion for new trial which was

overruled by operation of law. Petitioner filed a timely notice of appeal on June 21,

2012.    On July 30, 2014 the Eighth Court of Appeals affirmed Petitioner’s

conviction in an unpublished opinion. Martinez v. State, 2014 WL 3763649, *2

(Tex. App. – El Paso, 2014). A motion for rehearing was timely filed on October 21,

2014 and denied on November 5, 2014. This Court granted an extension of time in

which to file a petition for discretionary review until January 5, 2015.




                                          v
                          GROUNDS FOR REVIEW

1. Whether the Eighth Court erred in determining that it was not error for the

   State to ask its child forensic interviewer whether or not the child was

   consistent during the forensic interview thus implying that the child was

   being truthful.




                                    1
                           ARGUMENT GROUND 1

       It is generally improper for a witness to offer a direct opinion as to the
truthfulness of another witness. This type of testimony is inadmissible because it
impermissibly decides an issue for the jury. Although this issue generally arises in
the context of expert witnesses, lay opinions must also be helpful to a clear
understanding of the witness's testimony or the determination of a fact in issue. It
follows, then, that a lay witness is not permitted to offer an opinion that another
witness is truthful.

Relevant Facts

      The State called Max Zimmerly, the child forensic interviewer that spoke with

the child (IL), to testify about the manner in which he interviewed IL. Petitioner

lodged several objections to the relevance of the testimony indicating to the court

that he was concerned that Zimmerly would get into inadmissible matters regarding

what IL had told him. R. 5: 103-104, 107. Petitioner further argued that if that was

not the State’s intent, then Zimmerly’s testimony was not relevant. R. 5:103-104,

107. The court overruled Petitioner’s relevance objections. The State asked

Zimmerly whether he would ask the child to describe what’s happened to him and if

in fact he did that with IL. R. 5:111. Zimmerly responded that he did. R. 5:111.

The State continued its direct examination with “Generally speaking, do you look

for consistency within those details? Does the child stay on track?” R. 5:111.

Petitioner objected that the State was trying to elicit an opinion regarding

truthfulness. R. 5:111. The objection was overruled. R. 5:111. The State then


                                         2
repeated its question asking “You know when somebody tells a story, right, they tell

you the same set of events?” to which Zimmerly responded “Yes, ma’am”. R.

5:111. Zimmerly was then asked “what do you do with a child to see if the child is

consistently on track, that kind of thing. What do you do?” to which Zimmerly

responded that he would look for more details from the child, not trying to trick him

or anything but trying to get more information. R. 5:111-112. Finally, after

setting the stage for the importance of consistency, the State asked Zimmerly

whether IL had been consistent in the stories he relayed to him. Petitioner objected,

arguing to the court that the State was asking Zimmerly to relay what he had been

told by IL and to comment on IL’s consistency. R. 5:112. The State responded that

it understood that it was not supposed to have Zimmerly comment on the credibility

of IL but that was not what it was doing. R.5:112. Petitioner argued that testimony

regarding consistency would lead to the inference that IL was telling the truth. R.

5:113. The court overruled the objection and Zimmerly was allowed to testify that

IL was consistent throughout his story. R. 5:113.

Opinion of the Court of Appeals

      In affirming Petitioner’s conviction, the Eighth Court wrote:

      The complained-of testimony arises from the State's question to
      Zimmerly, “Was the child consistent throughout his story?” Zimmerly
      answered, “Yes, ma‘am.” Zimmerly did not offer an opinion regarding
      or otherwise discuss the truthfulness of IL's statements or testimony,

                                         3
      the truthfulness of IL's allegations, or the characteristics of child
      victims as a class. We do not agree with Appellant's assertion that
      Zimmerly's answer to the State's question constituted a direct or
      indirect comment on IL's truthfulness or credibility.

      Martinez v. State, 2014 WL 3763649, *1(Tex. App. – El Paso, 2014)


Reasons for Review

      Review should be granted because the Eighth Court has decided an important

question of state law that has not been but should be, settled by the Court of Criminal

Appeals. TEX. R. APP. P. 66.3(b).

      It is generally improper for a witness to offer a direct opinion as to the

truthfulness of another witness. See Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim.

App. 1997); Yount v. State, 872 S.W.2d 706, 709 (Tex.Crim.App.1993). This type

of testimony 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 Yount, 872 S.W. 2d at 709. Although this issue generally arises

in the context of expert witnesses, lay opinions must also be helpful to a clear

understanding of the witness's testimony or the determination of a fact in issue. See

Tex.R.Evid. 701. Arzaga v. State, 86 S.W. 3d 767, 776(Tex. App. – El Paso, 2002 no

pet.). It follows, then, that a lay witness is not permitted to offer an opinion that




                                          4
another witness is truthful. See Cohn v. State, 849 S.W.2d 817, 819 (Tex.Crim.

App.1993); Arzaga, 86 S.W. 3d at 776.

      In this case, the State’s child forensic interviewer was asked if the child gave a

consistent story regarding the allegations he was making. The forensic interviewer

stated that he did. According to the Eighth Court such testimony was not a direct or

indirect comment on the truthfulness of the child. The Eighth Court’s holding is

illogical and clearly erroneous when considered in the context of the questions that

preceded the ultimate question concerning the child’s consistency. The State set the

stage for the ultimate question by emphasizing the importance of consistency. It

made statements such “Generally speaking, do you look for consistency within those

details? Does the child stay on track?” and “You know when somebody tells a

story, right, they tell you the same set of events?” R. 5:111. Consistency within

details, staying on track and telling the same set of events have no relevance other

than to imply that the child was truthful.

      In Schutz this Court found that testimony that the complainant had not

exhibited any evidence of fantasizing was a direct comment on the truthfulness of

the complainant’s allegations. Schutz, 957 S.W. 2d at 73. This Court further found

that testimony indicating that it was less likely that the child had been manipulated,

clearly conveyed to the jury that the child’s allegations were not the result of


                                             5
manipulation and it held that such testimony was a direct comment on the

truthfulness of the complainant’s allegations. Id. It did not matter that the witness

was not asked directly whether he believed the witness was being truthful, the

logical inference was that the complainant’s allegations were true. Id. Similarly,

when the State questions a witness regarding the consistency of another witness’s

recitation of events, the logical inference from such questioning is that the State is

attempting to elicit an opinion regarding truthfulness. There is no other possible

inference, permissible or impermissible, that can be drawn from such questions.

      This Court’s review of the issue presented is important because lower courts

appear to be under the mistaken impression that a witness must be asked directly

whether a witness is being truthful before error will follow. See Martinez v. State,

2014 WL 3763649, *1(Tex. App. – El Paso, 2014)(Testimony that witness told

consistent story not a direct or indirect comment on truthfulness); Arzaga, 86 S.W.

2d at 776(Improper for witness to comment on another witness’s consistency

because witness testified that it “seemed like they were telling the truth when I had

taken the two stories.”); Alfaro v. State, 2014 WL 1017868, *4(Tex. App. – Dallas

2014, pet. ref’d)(Witness never specifically said the word “truthful” consequently,

testimony was not objectionable.) Under Schutz, testimony may be found to be a




                                          6
direct comment on truthfulness even though the witness never states that he believes

the witness is credible or truthful.

Conclusion

      This Court should grant review because the issue of witness consistency

arises often in child sexual abuse cases and this Court has not provided any guidance

regarding the admissibility of such testimony. Logically, the only reason such

testimony is offered is to improperly bolster the credibility of a witness. This Court

should grant this Petition and set out the circumstances under which such testimony

may be admissible, if any.




                                          7
                             PRAYER FOR RELIEF

      For all the reasons stated above, Petitioner respectfully requests that the

Honorable Court of Criminal Appeals grant this petition for discretionary review.



                                              Respectfully submitted,



                                              /s/ Ruben P. Morales
                                              Ruben P. Morales
                                              Attorney for Petitioner
                                              Texas Bar No. 14419100
                                              718 Myrtle Avenue
                                              El Paso, Texas 79901
                                              915 - 542 - 0388
                                              915 - 225 - 5132 fax


                               Certificate of Service

      I certify that a copy of this petition was delivered to the Office of the El Paso

County District Attorney at 500 E. San Antonio, El Paso, Texas 79901, and mailed

to the State Prosecuting Attorney at P.O. Box 12405, Austin, Texas, 78711 on

January 5, 2015.


                                              /s/ Ruben P. Morales
                                              Ruben P. Morales




                                          8
                     CERTIFICATE OF COMPLIANCE

      I certify that Appellant’s Petition for Discretionary Review contains 1,564

words and complies with the applicable Rules of Appellate Procedure.


                                                   /s/ Ruben P. Morales
                                                   Ruben P. Morales




                                         9
Wëstläw.
                                                                                                        Page 1
Not Reported in S.W.3d, 2014 WL 3763649 (Tex.App.-El Paso)
(Cite as: 2014 WL 3763649 (Tex.App.-El Paso))



                                                          at the time of the events, testified during trial re-
Only the Westlaw citation is currently available.         garding Appellant's acts upon him. IL was later in-
                                                          terviewed by a forensic interviewer, Joe Zimmerly,
SEE TX R RAP RULE 47.2 FOR DESIGNATION
                                                          who also testified at trial.
AND SIGNING OF OPINIONS.
                                                              After the jury found Appellant guilty of all
OPINION(Do Not Publish)
                                                          three counts, it assessed punishment at ninety-nine
            Court of Appeals of Texas,                    years' confinement for aggravated sexual assault of
                     El Paso.                             a child (Count I), twenty years' confinement for in-
           Ariel MARTINEZ, Appellant,                     decency with a child (Count II), and ten years' con-
                         V.                               finement for indecency with a child (Count III).
          The STATE of Texas, Appellee.
                                                                             DISCUSSION
              No. 08-12-00191—CR.                              In Issue One, Appellant complains the trial
                  July 30, 2014.                          court erred when it overruled his relevancy objec-
                                                          tion and permitted the State's witness, Zimmerly, to
Appeal from the 120th District Court of El Paso           testify that "the child [was] consistent throughout
County, Texas, (TC # 201 10D00036).                       his story." Appellant argues that this testimony
Michael R. Gibson, for Ariel Martinez.                    "was tantamount to allowing the interviewer to give
                                                          an opinion that the child was truthful[.]"
Jaime E. Esparza, for The State of Texas.
                                                               We review a trial court's evidentiary rulings
                                                          under an abuse of discretion standard. Gallo v.
Before McCLURE, C.J., RIVERA, and RODRIG-
                                                          State, 239 S.W.3d 757, 765 (Tex.Crim.App.2007)
UEZ, JJ.
                                                          (expert testimony); Shuffield v. State, 189 S .W.3d
                                                          782, 793 (Tex.Crim.App.2006)(evidence gener-
                     OPINION                              ally); Weatherred v. State, 15 S.W.3d 540, 542
GUADALUPE RIVERA, Justice.                                (Tex.Crim.App.2000)(expert testimony). A trial
     *1 Appellant, Ariel Martinez, appeals his con-       court abuses its discretion only when its decision
victions for one count of aggravated sexual assault       lies "outside the zone of reasonable disagree-
of a child and two counts of indecency with a child.      ment." Walters v. State, 247 S.W.3d 204, 217
We affirm.                                                (Tex.Crim.App.2007). When an evidentiary ruling
                                                          admitting evidence is reasonably supported by the
                 BACKGROUND                               record and is correct under any theory of law ap-
     Because Appellant does not challenge the suffi-      plicable to the case, it should be upheld. See Ramos
ciency of the evidence, we restrict our discussion of     V.     State,    245 S.W.3d 410, 417-18
the testimony and evidence presented at trial. Emil-      (Tex.Crim.App.2008).
ia Solis was a special education teacher at Anthony
Elementary School in Anthony, New Mexico. IL                   To be admissible, expert testimony must
was a student in Solis's classroom. IL informed Sol-      "assist" the trier of fact but must not supplant the
is that he needed to discuss a matter with her, and       jury's decision. See TEX.R. EVID. 702; Schutz v.
proceeded to make an outcry regarding events that         State, 957 S.W.2d 52, 59 (Tex.Crim.App.1997);
occurred when he went to the restroom at a Big 8          Duckett v. State, 797 S.W.2d 906, 914
store in Anthony, Texas. IL, who was ten years' old       (Tex.Crim.App.1990). An expert's testimony assists




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                                                                                                           Page 2
Not Reported in S.W.3d, 2014 WL 3763649 (Tex.App.-El Paso)
(Cite as: 2014 WL 3763649 (Tex.App.-El Paso))




the fact finder when the jury is not qualified to "the     not influence the jury, or influenced the jury only
best possible degree" to intelligently determine the       slightly, we will not overturn a conviction for non-
particular issue without the help thereof. Duckett,        constitutional error. Id at 93. "A conviction must
797 S.W.2d at 914. Expert testimony that consti-           be reversed for non-constitutional error if the re-
tutes "a direct opinion on the truthfulness" of a          viewing court has grave doubt that the result of the
child complainant's allegations does not assist the        trial was free from the substantial effect of the er-
jury. Yount v. State, 872 S.W.2d 706, 708                  ror." Id. at 94. If "in the judge's mind, the matter is
(Tex.Crim.App. 1993).                                      so evenly balanced that he feels himself in virtual
                                                           equipoise as to the harmlessness of the error,"
     The complained-of testimony arises from the           grave doubt exists. Id
State's question to Zimmerly, "Was the child con-
sistent throughout his story?" Zimmerly answered,               Having reviewed the record as a whole, we
"Yes, ma'am." Zimmerly did not offer an opinion            conclude the admission of Zimmerly's testimony
regarding or otherwise discuss the truthfulness of         did not have a substantial or injurious effect or in-
IL's statements or testimony, the truthfulness of IL's     fluence on the jury's verdict or, at most, had but
allegations, or the characteristics of child victims as    only a slight influence on the jury. Id. at 93-94.
a class. We do not agree with Appellant's assertion        Among other evidence, the jury heard testimony
that Zimmerly's answer to the State's question con-        from IL, IL's sexual-abuse nurse examiner, officer
stituted a direct or indirect comment on IL's truth-       testimony regarding Appellant's own statements to
fulness or credibility. If we did arrive at that con-      police placing him at the scene, and considered the
clusion, however, the error was harmless and did           physical evidence of injury to IL's body and the
not have a substantial or injurious effect upon the        timeframe for healing therefrom. Zimmerly's com-
jury's verdict.                                            plained-of testimony was not reviewed, expanded
                                                           upon, revisited, or even addressed by the State dur-
     *2 In assessing the likelihood that the jury's de-    ing closing argument, and was but a small portion
cision was improperly influenced, we consider              of the evidence before the jury. Issue One is over-
everything in the record, including any testimony or       ruled.
physical evidence admitted for the jury's considera-
tion, the nature of the evidence supporting the ver-            In Issues Two and Three, Appellant next raises
dict, and the character of the alleged error and how       allegations that his trial counsel rendered ineffect-
it might be considered in connection with other            ive assistance. We review ineffective assistance of
evidence in the case.        Barshaw v. State, 342         counsel claims according to the United States Su-
S.W.3d 91, 94 (Tex.Crim.App.2011) (citations               preme Court's two-pronged Strickland test. Strick-
omitted). We may also consider the trial court's jury      land v. Washington, 466 U.S. 668, 687, 104 S.Ct.
instruction, the state's theory, defensive theories,       2052, 2064, 80 L.Ed.2d 674 (1984). Under the first
closing arguments, voir dire, and whether the state        prong, an appellant must show that "counsel's per-
emphasized the error. Id                                   formance was deficient," i.e., that his assistance
                                                           "fell below an objective standard of reasonable-
     We disregard non-constitutional error unless it       ness." Strickland, 466 U.S. at 687-88, 104 S.Ct. at
affects the defendant's substantial rights. Id. at 93.     2064. Under the second prong, an appellant must
In considering the potential to harm, we focus not         prove prejudice by showing "a reasonable probabil-
on whether the outcome of the trial was proper des-        ity that, but for counsel's unprofessional errors, the
pite the error, but whether the error had a substan-       result of the proceeding would have been differ-
tial or injurious effect or influence on the jury's ver-   ent." Id. at 694, 104 S.Ct. at 2068; Jackson v. State,
dict. Id. at 93-94. If, after examining the record as      877 S.W.2d 768, 771 (Tex.Crim.App.1994); John-
a whole, we have fair assurance that the error did




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                                                                                                          Page 3
Not Reported in S.W.3d, 2014 WL 3763649 (Tex.App.-El Paso)
(Cite as: 2014 WL 3763649 (Tex.App.-El Paso))




son v. State, 234 S.W.3d 43, 56 (Tex.App.-El Paso         satisfy the dual prongs of Strickland." Thompson, 9
2007, no pet.). Prejudice is established by showing       S.W.3d at 814 n. 6. Without evidence in the record
a reasonable probability that but for counsel's un-       of the attorney's reasons for his conduct, the pre-
professional errors, the result of the proceeding         sumption that an attorney's actions were sound trial
 would have been different. Strickland, 466 U.S. at       strategy ordinarily cannot be overcome. See Jack-
694, 104 S.Ct. at 2068; Mallett v. State, 65 S.W.3d       son, 877 S.W.2d at 771. Appellant "must prove, by
59, 62-63 (Tex.Crim.App.2001); Johnson, 234               a preponderance of the evidence, that there is, in
S.W.3d at 56. A reasonable probability is a probab-       fact, no plausible professional reason for a specific
ility sufficient to undermine confidence in the out-      act or omission" to show ineffective assistance of
come. Mallett, 65 S.W.3d at 63; Johnson, 234              counsel on direct appeal. Bone, 77 S.W.3d at 836.
 S.W.3d at 56. Claims of ineffective assistance must
 be proven by a preponderance of the evidence.                 In Issue Two, Appellant complains that trial
Bone v. State, 11 S.W.3d 828, 836                         counsel failed to object to the hearsay testimony of
(Tex.Crim.App.2002). A failure to make either of          Officer Robert Sherrouse regarding IL's description
the required showings of deficient performance and        to him of the assailant and the assailant's genitals,
sufficient prejudice defeats an appellant's claim of      genital area, and clothing. In Issue Three, Appellant
ineffective assistance. Rvlander v. Stale, 101            asserts his trial counsel erred in eliciting and failing
 S.W.3d 107, 110 (Tex.Crim.App.2003). We look             to object to testimony regarding Appellant's invoca-
"to the totality of the representation and the particu-   tion of his right to counsel after Appellant was
lar circumstances of each case in evaluating the ef-      asked to provide police with a written statement.
fectiveness of counsel." Thompson v. State, 9             Appellant's assertions are unsupported by any evid-
 S.W.3d 808, 813 (Tex.Crim.App.1999). Further,            ence in the record showing counsel's reasons for his
"any judicial review must be highly deferential to        conduct. Therefore, Appellant has not overcome the
trial counsel and avoid the deleterious effects of        presumption that trial counsel's actions constituted
 hindsight." Id.                                          sound trial strategy. See Jackson, 877 S.W.2d at
                                                          771. Because Appellant has failed to satisfy the
                      Analysis                            first Strickland prong, Issues Two and Three are
     *3 When analyzing an ineffective assistance of       overruled. Strickland, 466 U.S. at 687, 104 S.Ct. at
counsel claim, we "must indulge a strong presump-         2064.
tion that counsel's conduct falls within the wide
range of reasonable professional assistance; that is,                       CONCLUSION
the [appellant] must overcome the presumption                 The trial court's judgment is affirmed.
that, under the circumstances, the challenged action
'might be considered sound trial strategy.' "Strick-       Tex.App.-El Paso,2014.
land. 466 U.S. at 689, 104 S.Ct. at 2065, quoting          Martinez v. State
 Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.           Not Reported in S.W.3d, 2014 WL 3763649
 158, 164, 100 L.Ed. 83 (1955). "To defeat the pre-       (Tex.App.-El Paso)
sumption of reasonable professional assistance,
,any allegation of ineffectiveness must be firmly         END OF DOCUMENT
founded in the record, and the record must affirmat-
ively demonstrate the alleged ineffectiveness.'
Thompson, 9 S.W.3d at 814, quoting McFarland v.
State, 928 S .W.2d 482, 500 (Tex.Crim.App.l996).
Typically, however, "the undeveloped record on
direct appeal will be insufficient for an appellant to




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