                                                                             PD-1282-15
                      PD-1282-15                            COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                          Transmitted 9/28/2015 12:00:00 AM
                                                             Accepted 9/30/2015 1:19:11 PM
                                                                             ABEL ACOSTA
                       NO. __________                                                CLERK
                           In the
                COURT OF CRIMINAL APPEALS
                          of Texas
                        Austin, Texas


                           ISIDRO REYNA,
                              Petitioner

                                VS.

                     THE STATE OF TEXAS,
                          Respondent


       PETITION FOR DISCRETIONARY REVIEW

Seeking review of the Fifth Court of Appeals' judgment and opinion in
                      cause no. 05-14-00973-CR


              On appeal from Cause No. F11-62933-Q
              from the 204th Judicial District Court of
                       Dallas County, Texas


                                        Catherine Clare Bernhard
                                        P.O. Box 2817
                                        Red Oak, Texas 75154
                                        972-617-5548
                                        fax – 972-421-1604
                                        cbernhard@sbcglobal.net
                                        State Bar No. 02216575

                                        ATTORNEY FOR PETITIONER
      September 30, 2015




                                  i
               IDENTITY OF PARTIES AND COUNSEL

Trail Judge:
       Hon. John Nelms
       Visiting Judge
       Dallas County, Texas

For Appellant, Isidro Reyna:

      Appellate counsel:
           Catherine Clare Bernhard
           State Bar No. 02216575
           P.O. Box 2817
           Red Oak, Texas 75154
           972-617-5548
           fax – 972-421-1604
           cbernhard@sbcglobal.net


      Trial counsel:
             William Rink
             State Bar No. 16935825
             1520 N. Beckley Ave., #732
             Dallas, Texas 75203-1070
             469-223-2443




                                   ii
For Appellee, State of Texas:

      Appellate counsel:
           Michael J. Sandlin
           State Bar No. 17621503
           Dallas County District Attorney’s Office
           133 N. Riverfront Blvd., LB 19
           Dallas, Texas 75207
           214-653-3625

      Trial Counsel:
             Summer Elmazi
             State Bar No. 24042652
             Dallas County District Attorney’s Office
             133 N. Riverfront Blvd., LB 19
             Dallas, Texas 75207
             214-653-3600

            Shequitta D. Kelly
            State Bar No. 24068441
            Dallas County District Attorney’s Office
            133 N. Riverfront Blvd., LB 19
            Dallas, Texas 75207
            214-653-3600




                                     iii
                                     TABLE OF CONTENTS


Identity of parties and counsel…………………………………………...ii

Index of Authorities....................................................................................v

Statement Regarding Oral Argument…………………………………….1

Statement of the Case.................................................................................1

Statement of Procedural History................................................................1

Ground for Review.....................................................................................2
     THE COURT OF APPEALS ERRED IN FINDING THAT
     THE ADMISSION OF TESTIMONY FROM TWO EXPERTS
     THAT THEY OBSERVED NO “RED FLAGS” IN
     COMPLAINANT’S TESTIMONY WAS HARMLESS.

Argument....................................................................................................2

Prayer for Relief.........................................................................................5

Certificate of Service..................................................................................6

Certificate of Compliance with Rule 9.4.…………………………………7

Appendix.....................................................................................................8




                                                        iv
                                 INDEX OF AUTHORITIES

Cases

Isidro Reyna v. State, No. 05-14-00973-CR (Tex. App. – Dallas, August, 10,

  2015)(pet. filed)(not designated for publication)......................................... 2

Sandoval v. State, 409 S.W.3d 259 (Tex. App. – Austin, no pet.) ................. 3

Rules

Tex. R. App. P. 44.2(b) ............................................................................... 2, 3

Tex. R. App. P. 66.3(f) ................................................................................... 5

Tex. R. App. P. 68…………………………………………...………………1




                                                     v
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      COMES NOW Isidro Reyna, Petitioner, by and through his attorney,

Catherine Clare Bernhard, and pursuant Rule 68 of the Texas Rules of

Appellate Procedure, moves this Court to grant discretionary review, and in

support will show the following:



           STATEMENT REGARDING ORAL ARGUMENT

      Petitioner does not request oral argument in this case.



                      STATEMENT OF THE CASE

      Isidro Reyna was charged with Continuous Sexual Abuse of a Child.

(C.R. at 11). A jury found him guilty as charged and assessed his

punishment at 28 years in the penitentiary. (C.R. at 112; VII R.R. at 38; VII

R.R. at 60). This is an appeal from that judgment.



             STATEMENT OF PROCEDURAL HISTORY

      Petitioner complained on appeal that the trial court improperly

admitted expert opinions regarding the complainant’s credibility. The Fifth

Court of Appeals disagreed and affirmed this conviction. Isidro Reyna v.

State, No. 05-14-00973-CR (Tex. App. – Dallas, August, 10, 2015)(pet.



                                      1
filed)(not designated for publication). A motion for rehearing was timely

filed on August 24, 2015, and denied on September 8, 2015. Therefore, this

petition is timely filed if filed by Oct. 8, 2015.

                          GROUND FOR REVIEW

      THE COURT OF APPEALS ERRED IN FINDING THAT THE

  ADMISSION OF TESTIMONY FROM TWO EXPERTS THAT THEY

  OBSERVED NO “RED FLAGS” IN COMPLAINANT’S TESTIMONY

                              WAS HARMLESS.

      During Mr. Reyna’s trial, both the forensic interviewer and the

detective were allowed to testify, over objection, that they observed no “red

flags” in the complainant’s story. Without actually reaching the issue of

whether this was error, this Court found any error to be harmless under Tex.

R. App. P. 44.2(b). It was not.

                                  ARGUMENT

      In this case, the State was permitted to ask two different witnesses,

Christine Mack and Det. Daniel Greene, if they observed any “red flags” in

the forensic interview of M. A. On both occasions the defense objected to

this line of questioning as a comment on the witness’ credibility. On both

occasions, this objection was overruled and the witnesses were allowed to

tell the jury that they saw no “red flags”. (V R.R. at 161-162; VI R.R. at 46).



                                         2
From the context of the questioning, it was clear that the term “red flags”

meant a reason to believe that the complainant was not credible.

       Without actually reaching the issue of whether this was error, the

court of appeals found any error to be harmless under Tex. R. App. P.

44.2(b). It was not.

      The critical issue at trial was the credibility of the complainant. The

defense had suggested that M.A. fabricated her story because her friend had

obtained a puppy and a computer for telling a similar story. The defense

argued that M.A.’s testimony about what happened was too vague and

imprecise to be credible. (VII R.R. at 23-28). It was in that context that the

questions about “red flags” were asked. This testimony from the detective

and the forensic interviewer was critical and it came cloaked in an aura of

expertise.

      In Sandoval v. State, 409 S.W.3d 259 (Tex. App. – Austin, no pet.),

the court found similar “red flag” testimony to be inadmissible. In that case,

the detective had testified, over objection, that there were no “red flags” in

the victim’s story to indicate that she was “fabricating the story”. The court

found this was error, but ultimately, found it to be harmless because there

had been similar testimony from the forensic interviewer which came in

without objection. The court stated:



                                       3
      We do not hold, or even suggest, that expert opinions are
      interchangeable such that the admission of one expert’s opinion
      automatically eliminates harm in the erroneous admission of
      another expert’s opinion merely because they opine about the
      same topic. Our conclusion here is based on the opinion
      testimony in this case and the expertise of the experts who gave
      it. Both of these opinions are derived from the same source –
      [the victim]’s interview ([the detective] reviewed it while [the
      forensic interviewer] conducted it) – and were similar in nature
      (both expressing the opinion that [the victim] did not fabricate
      the allegations). However, we recognize that though similar in
      nature, these opinions are still distinguishable based on areas of
      expertise. [The detective]’s opinion was based on his
      generalized expertise as a law enforcement officer, whereas [the
      forensic interviewer]’s opinion was based on her specialized
      expertise as a child-abuse expert. The strength of her opinion
      derives from her expertise in that particularized field and
      mitigates the harm of the erroneous admission of the detective’s
      more generalized opinion. Had the situation been reversed, we
      cannot say that we would necessarily have found that the
      admission, without objection, of [the detective]’s opinion
      substantially mitigated the harm in an erroneous admission of
      [the forensic interviewer]’s testimony.

Sandoval at 294 n.24. Thus, the court opined that it might not be harmless if

the forensic interviewer’s opinion was erroneously admitted, given her

specialized expertise.

      In this case, both the forensic interviewer, with her specialized

expertise, and the detective, with his generalized expertise, testified over

objection, about these “red flags” of credibility. Coming from two different

experts greatly increases the impact of this improper opinion on the

truthfulness of a critical witness in this case. In a case where the victim’s



                                        4
credibility was the primary contested issue at trial, the court erred in finding

that the improper admission of this evidence did not influence the jury, or

influenced the jury only slightly. This conclusion so far departed from the

accepted and usual course of judicial proceedings as to require the granting

of this petition for discretionary review. Tex. R. App. P. 66.3(f).



                              PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully

prays that this Court grant discretionary review and, after full briefing on the

merits, issue an opinion reversing the Court of Appeals' judgment.

                                               Respectfully submitted,



                                               _                    ______
                                               Catherine Clare Bernhard
                                               P. O. Box 2817
                                               Red Oak, Texas 75154
                                               972-617-5548
                                               fax – 972-421-1604
                                               cbernhard@sbcglobal.net
                                               State Bar No. 02216575

                                               ATTORNEY FOR PETITIONER




                                        5
                       CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Petition

was served through the electronic filing system on Michael Sandlin,

Assistant District Attorney for Dallas County at

michael.sandlin2@dallascounty.org and the State Prosecuting Attorney at

information@spa.texas.gov on September 26, 2015.




                                             _                      ______




                                      6
    CERTIFICATE OF COMPLIANCE WITH RULE 9.4



I hereby certify that the foregoing petition contains 1, 378 words.




                                       _                      ___




                                7
      APPENDIX

Court of Appeals Opinion




           8
AFFIRM; and Opinion Filed August 10, 2015.




                                                        S
                                            Court of Appeals
                                                            In The


                                     Fifth District of Texas at Dallas
                                                     No. 05-14-00973-CR

                                               ISIDRO REYNA, Appellant
                                                         V.
                                             THE STATE OF TEXAS, Appellee

                                 On Appeal from the 204th Judicial District Court
                                              Dallas County, Texas
                                      Trial Court Cause No. F-1162933-Q

                                            MEMORANDUM OPINION
                                          Before Justices Bridges, Fillmore, and Brown
                                                   Opinion by Justice Brown
          Isidro Reyna appeals his conviction for continuous sexual abuse of M.A., a child younger

than fourteen years of age. After finding appellant guilty of the charged offense, the jury

assessed punishment at twenty-eight years’ confinement. In a single issue, appellant claims the

trial court abused its discretion by allowing certain evidence. We affirm.

                                                       BACKGROUND

          Twelve-year-old M.A. testified she lived with her mother, Julia, several siblings, and

Julia’s husband, appellant. 1 When M.A.’s friend, F.S., said her uncle was hurting her by trying

to touch and kiss her, M.A. revealed that appellant had been doing similar things to M.A.




   1
       Julia is M.A.’s biological aunt.
       According to M.A., when she was seven or eight years old, appellant came up behind her,

reached under her shirt, and touched her breasts while she was playing video games on the

couch. She told the jury she was about nine years old when he touched her “middle part” with

his fingers. She described her “middle part” as where she pees. She said it felt “weird” and hurt

when he did it. On another occasion, appellant called from the bathroom and asked her to bring

him a towel. When he opened the bathroom door, he did not have any clothes on. He took her

hand, “put it on his middle part,” and made her “move it up and down.” According to M.A., the

“white stuff that came out” of his middle part ended up on her face, near her mouth. M.A. could

not remember how old she was at that time. She also told the jury that one night, while she was

asleep, appellant came in her bedroom and tried to “put his middle part in my butt, but he

couldn’t.” The “white stuff” went on her shorts, underwear, and bed covers. She threw away

her underwear the next morning but could not remember what she did with her shorts. On

another occasion, appellant tried to put his middle part in her mouth while she was sleeping.

       Christine Mack, a forensic interviewer with the Dallas Children’s Advocacy Center, was

the outcry witness. She began her testimony by detailing her educational background and

training; she then described for the jury how a forensic interview is conducted and what types of

things the interviewer looks for. She discussed, at length, what red flags are, describing them as

indicators of whether something has in fact occurred or whether the child is being told to say it

occurred. She indicated red flags would also show whether a child was holding back information

or giving full disclosure.

       When Mack interviewed M.A., the child made “multiple disclosures of abuse.” Mack,

who speaks Spanish fluently, interviewed M.A. in Spanish and detailed the incidents for the jury.

According to Mack, appellant touched M.A.’s breasts on at least two separate occasions: once

by taking her shirt off and the other by placing his hands underneath her shirt.                M.A.

                                               –2–
demonstrated the rubbing motion he used when touching her breasts. Another time, appellant

came up behind her, pulled her pants down “just a little bit,” stretched her underwear out, and

touched her vagina with his finger. The next incident occurred when M.A. was sleeping;

appellant opened her mouth and, grabbing his penis, put it inside her mouth. He then moved his

hands forward and backwards until she felt what she called “baba” in her mouth.              Mack

described “baba” as Spanish for “spit, saliva, slime, [or] something of that nature.” M.A.

swallowed the “baba,” and appellant stopped. Another time, M.A. was sleeping, and appellant

came into her room. He pulled down her shorts and underwear, then touched her butt with his

penis. M.A. said it “felt like a stick” and she could “feel the baba on her butt.” The following

morning, she woke and saw the “white crusty stuff” on her shorts and underwear. She threw her

shorts in the wash, threw her underwear out, and put on clean clothes. Finally, M.A. told Mack

that appellant showed her iPhone videos of naked adults kissing on a bed, telling her that was

what “he wanted to do to her.”

        When asked if she determined whether M.A.’s testimony had red flags, appellant

objected on the grounds Mack was being asked to judge whether M.A. was telling the truth and

that it was inappropriate. The trial court overruled appellant’s objection, after which Mack stated

she did not “determine any red flags. And just for clarification, our red flags, we do not make an

opinion on the case.” When asked to elaborate, Mack said, “[w]e are never going to tell a police

officer we think the child is telling the truth or the child’s lying.”

        Sandra Onyinanya is a pediatric nurse practitioner and the sexual assault nurse examiner

(SANE) at the REACH Clinic at Children’s Medical Center Dallas. She examined M.A. but

found no signs of physical trauma. Onyinanya said this was quite common and that 85-95% of

the SANE exams were normal. This is due, in large part, to the type of tissue in the vaginal and

anal areas and its ability to heal quickly. Onyinanya also noted M.A.’s mother was unsure of

                                                  –3–
what had happened and whether to believe M.A. Specifically, her mother said M.A.’s friend,

F.S., reported she was sexually abused by her uncle and got gifts from CPS, and that M.A. “now

wants the same thing.” Onyinanya told her that the majority of the time, “children typically [do

not] make up stories about sexual abuse.” She further noted that if a child is able to give the

detail M.A. did in her forensic interview, “then that was beyond makeup.”

       At the time of M.A.’s outcry, Detective Daniel Greene was assigned to the Child Abuse

Division of the Dallas Police Department and investigated her claims. He requested a forensic

interview for M.A. and was present when Mack interviewed her. According to Greene, M.A.

said her uncle abused her. When Greene was asked whether he observed any “red flags” in the

course of M.A.’s interview, appellant objected that such testimony was an attempt to bolster

M.A.’s credibility. The trial court overruled the objection, and Greene testified he did not

observe any red flags. The State then asked Greene to define what a red flag was, and appellant

again objected and asked for a running objection to “red flag testimony.” The trial court

overruled the objection and granted appellant a running objection as requested.          Greene

described a “red flag” as “a statement made by the child or something in the case which would

cause us to have concern for the credibility of the child.”      He then gave several generic

examples, including a child using vocabulary inconsistent with the child’s age. Greene said that,

in light of M.A.’s statements, he obtained a warrant for appellant’s arrest, as well as a search

warrant for the family home.

       Greene arrested appellant and read him his Miranda rights.           He then interviewed

appellant, who initially denied M.A.’s allegations, but later admitted touching M.A.’s “vagina

over her clothing at least five times.” He also admitted it happened over a period of several

months and that “[m]ost of the time it was over her clothes.” When Greene asked appellant if

M.A. initiated the conduct, appellant responded, “No. Never can a girl that age start something

                                              –4–
like that.” Appellant also admitted having an obsession with pornography but said he did not

show pornographic materials to M.A. He also denied any other sexual abuse occurred and

specifically denied penetrating M.A. or putting his penis in her mouth. Greene said that, in his

experience with people suspected of sexual abuse, “they hold back” information and “minimize

their culpability.” Greene also told the jury he seized the bed covers on M.A.’s bed as well as

appellant’s iPhone, but no physical evidence was found.

       After hearing this and other evidence, the jury found appellant guilty of continuous

sexual abuse of a child younger than fourteen years of age. This appeal followed.

                                 ADMISSION OF EVIDENCE

       In his sole issue, appellant claims the trial court erred by allowing Mack and Greene to

testify whether they detected “red flags” during M.A.’s interview which, he contends,

commented on M.A.’s credibility. He claims his substantial rights were affected and we must

reverse his conviction.

       Although we review a trial court’s decision to admit or exclude evidence under an abuse

of discretion standard, Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010), we

conclude we need not address whether the admission of the complained of testimony in this case

was an abuse of discretion because, even if it were, appellant has not shown reversible error.

The wrongful admission of evidence constitutes non-constitutional error, and we must disregard

it unless it affected appellant’s “substantial rights.” TEX. R. APP. P. 44.2(b). An error affected a

substantial right “when the error had a substantial and injurious effect or influence in

determining the jury’s verdict.” Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010);

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Despite non-constitutional error,

we affirm a criminal conviction if, after examining the record as a whole, we are left with the fair

assurance that the error did not influence the jury or influenced the jury only slightly. Morales v.

                                                –5–
State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). We analyze the entire record to determine if

the trial court’s error had no or only a slight effect on the jury’s decision. Johnson v. State, 967

S.W.2d 410, 417 (Tex. Crim. App. 1998); Wilson v. State, 90 S.W.3d 391, 393 (Tex.

App.―Dallas 2002, no pet.). We consider all the evidence, the nature of the evidence supporting

the verdict, and the character of the error and its relationship to other evidence, as well as the

trial court’s instructions to the jury and the parties’ closing arguments, to determine if the error

substantially affected appellant’s rights. Wilson, 90 S.W.3d at 393.

       The record reflects M.A. testified at trial and gave specific, sensory detail that, beginning

when she was eight years old and ending several months later when she was nine years old,

appellant touched her breasts and vagina on several occasions, placed his penis in her mouth and

on her butt, and that on one occasion, he made her grab his penis until he ejaculated. Appellant

admitted he touched M.A.’s vagina at least five times and, although he initially said all the

touching was “over her clothes,” he later said it was over her clothes “most of the time.” During

closing arguments, the State focused on M.A.’s in-court statement as well as appellant’s video-

taped statement to Greene. No mention was made of red flags or whether or not Greene or Mack

thought M.A. was telling the truth.

       Considering the record as a whole, including all the evidence presented, the nature of the

evidence supporting the verdict, the character of the asserted error and its relationship to other

evidence, the instructions of the court, and closing argument, we are left with the fair assurance

that the trial court’s error, if any, did not influence the jury or influenced the jury only slightly.

See id. We therefore disregard the trial court’s non-constitutional error, if any, as harmless. See

TEX. R. APP. P. 44.2(b). We overrule appellant’s sole issue.




                                                 –6–
       We affirm the trial court’s judgment.




                                                     /Ada Brown/
                                                     ADA BROWN
                                                     JUSTICE




Do Not Publish
TEX. R. APP. P. 47.2(b)

140973F.U05




                                               –7–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ISIDRO REYNA, Appellant                            On Appeal from the 204th Judicial District
                                                   Court, Dallas County, Texas
No. 05-14-00973-CR        V.                       Trial Court Cause No. F11-62933-Q.
                                                   Opinion delivered by Justice Brown, Justices
THE STATE OF TEXAS, Appellee                       Bridges and Fillmore participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 10th day of August, 2015.




                                             –8–
