                                 MEMORANDUM OPINION
                                         No. 04-11-00077-CR

                                      Ricardo A. ZAVALA, Jr.,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the County Court at Law No. 7, Bexar County, Texas
                                      Trial Court No. 295771
                         The Honorable Monica A. Gonzalez, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: December 7, 2011

AFFIRMED

           Appellant Ricardo A. Zavala Jr. appeals his conviction for assault causing bodily injury.

Zavala raises two issues on appeal: (1) the trial court erroneously admitted expert witness

testimony that improperly bolstered the testimony of the assault victim; and (2) the trial court’s

admission of hearsay and improper extraneous offense evidence violated Zavala’s Sixth

Amendment right of confrontation. We affirm the trial court’s judgment.
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                                          BACKGROUND

       While driving home from a baby shower, Zavala got into an argument with his then-

girlfriend and later-wife, Kathryn Palomino. Zavala ordered Palomino out of the truck. She

refused. Palomino testified that Zavala pulled her out of the vehicle, threw her against the truck,

and choked her until she lost consciousness. After regaining consciousness in a pool of her own

blood, Palomino called her sister, a nurse, for medical advice. Her sister advised her to go to a

hospital. Palomino called a friend who drove her to the hospital. She told neither her sister nor

her friend how she was injured. During the medical exam, Palomino explained that she was

unsure how she was injured and that she might have fallen. Believing Palomino’s head injury to

be more consistent with an assault, the hospital staff called police. Palomino testified that she

told the responding officer that she was unsure if she fell or if she was punched.

       Zavala was arrested over a year later. Within a week after posting bond, Zavala drove

Palomino to his attorney’s office where Palomino signed an affidavit of non-prosecution. On

direct examination, Palomino testified that the statement she signed in the affidavit was false and

was wholly written and typed by either Zavala’s attorney or his legal secretary. Palomino stated

that she signed the affidavit because she loved Zavala and did not want him to get in trouble. On

cross-examination, she was accused of, inter alia, (1) making the story up because she was

jealous that Zavala cheated on her, (2) being drunk at the time she was injured, and (3)

committing perjury. Zavala’s counsel also had Palomino read the affidavit of non-prosecution

into the record.

       Zavala testified at trial that on the night of the incident, Palomino was drunk and had

swung at him when he took her home. He explained that he pushed her against the truck after

she attempted to hit him, and as he let go, she fell face-first on the driveway. After the defense



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rested and over Zavala’s objection, the State called two rebuttal witnesses. The first was Maria

Falcon, a licensed counselor. Her expert testimony explained why some women choose not to

report acts of domestic violence. The State then called Sergeant Terry Mason to rebut Zavala’s

claim that he never assaulted Palomino or his ex-wife.

                    BOLSTERING THROUGH EXPERT WITNESS TESTIMONY

       In his first point of error, Zavala contends the trial court erred in admitting the testimony

of Maria Falcon, a licensed counselor who worked with victims of family violence. Over

objections, Falcon testified that it is common for a victim who has been assaulted by a husband

or boyfriend to change her story and to not tell friends or family about the abuse. Falcon did not

give an opinion as to Palomino’s truthfulness. Zavala argues that because Palomino never

recanted allegations of abuse and because she was never impeached, Falcon’s testimony was

inadmissible bolstering. Zavala does not argue on appeal that Falcon was unqualified or that her

expert testimony was insufficiently reliable under Texas Rule of Evidence 702.

A. Standard of Review

       A trial court’s ruling on the admissibility of expert testimony is reviewed under an abuse

of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000);

Lagrone v. State, 942 S.W.2d 602, 616 (Tex. Crim. App. 1997).

B. Applicable Law

       Improper “bolstering” occurs when a party offers “any evidence the sole purpose of

which is to convince the factfinder that a particular witness or source of evidence is worthy of

credit, without substantively contributing ‘to make the existence of [a] fact that is of

consequence to the determination of the action more or less probable than it would be without

the evidence.’” Cohn v. State, 849 S.W.2d 817, 819–20 (Tex. Crim. App. 1993) (alteration in



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original) (quoting former TEX. R. CRIM. EVID. 401). “[T]he State may not bolster or support its

own witnesses unless they have been impeached on cross-examination.” Farris v. State, 643

S.W.2d 694, 697 (Tex. Crim. App. 1982) (citing Pless v. State, 576 S.W.2d 83 (Tex. Crim. App.

1978)). The fact that expert testimony may tend to bolster or support a particular witness’s

credibility is not the proper test for determining admissibility; rather, the proper test “is whether

the expert’s testimony, if believed, will assist the untrained layman trier of fact to understand the

evidence or determine a fact in issue, and whether it is otherwise admissible under general rules

of relevant admissibility.” Duckett v. State, 797 S.W.2d 906, 914, 917 (Tex. Crim. App. 1990)

(citing TEX. R. EVID. 702), disapproved on other grounds by Cohn v. State, 849 S.W.2d 817

(Tex. Crim. App. 1993) (disapproving Duckett to the extent Duckett may be read as requiring

impeachment prior to the admission of substantive evidence offered by an expert witness).

       Expert testimony may aid the jury’s decision, but the testimony may not replace that

decision. Duckett, 797 S.W.2d at 914, 920. Expert testimony is inadmissible under Rule 702

when the expert offers a direct opinion on a witness’s credibility. Yount v. State, 872 S.W.2d

706, 709 (Tex. Crim. App. 1993).

C. Analysis

       The record supports the conclusion that Palomino was impeached.              During closing

arguments, defense counsel stated, “I don’t take fondness of calling [Palomino] a liar, a cheater,

a thief, but that’s what she is.” This statement sums up Zavala’s defensive theories presented

throughout the trial. Zavala relied on the affidavit of non-prosecution as an accurate account of

the incident. Counsel for Zavala highlighted Palomino’s inconsistent testimony by having her

read her affidavit of non-prosecution into the record. Palomino also admitted (1) that she told

her friend she did not know how she was injured, and (2) that she lied to the doctor when she



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said she did not know how she sustained the injuries. Zavala’s counsel engaged in a vigorous

cross-examination that cannot be characterized as mild.        See Duckett, 797 S.W.2d at 919

(determining a witness was effectively impeached when much of the impeachment evidence

focused on inconsistent statements made by the witness); cf. Farris v. State, 643 S.W.2d 694,

696–97 (Tex. Crim. App. 1982). Zavala relies on Farris, where the court held the admission of

expert testimony was harmful when the complainants were not first impeached. Farris, 643

S.W.2d at 697. The court noted that the cross-examination of the complainants was “far from

being vigorous in nature [and] was extremely mild.” Id. at 696. The court also noted that any

attempted impeachment was related to matters that were not material and were totally unrelated

to the bolstering testimony of the expert witness. Id. at 697. In this case, the cross-examination

was vigorous and impeached Palomino with multiple inconsistent statements. As a result, the

trial court did not err in admitting Falcon’s testimony over Zavala’s objections of improper

bolstering.

       Relying on our holding in Scugoza, Zavala also argues that before expert testimony is

admitted, a complainant must recant an affirmative allegation of abuse, and, conversely, expert

testimony is not admissible when a complainant recants a prior affidavit of non-prosecution. See

Scugoza v. State, 949 S.W.2d 360, 363 (Tex. App.—San Antonio 1997, no pet.). We do not

agree with this narrow interpretation. In Scugoza, an assault victim initially reported to police

that her husband had assaulted her; however, at the husband’s trial, the wife recanted her original

accusation. Id. at 361. We did not limit the admissibility of expert testimony on spousal abuse

to situations where abuse victims recanted affirmative allegations of abuse. Rather, we noted

that an expert’s testimony regarding patterns of spousal abuse is admissible if it is “useful to the




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jury in discerning [the complainant’s] credibility as it helped to explain inconsistencies between

[her] trial testimony and her previous report to [an o]fficer.” Id. at 363.

       Falcon explained to the jury the reasons why women who have been assaulted by their

husbands or boyfriends change their stories and why they do not report instances of abuse.

Falcon explained technical terms, and she explained that physical, emotional, and psychological

difficulties contribute to a victim’s refusal to report abuse and to a victim’s tendencies to change

her story. This testimony helped explain why Palomino refused to report the abuse to her

friends, her family, hospital personnel, and the responding officer, and it also helped explain why

Palomino recanted her affidavit of non-prosecution. See id. Falcon’s testimony did not address

the specific abusive injuries to Palomino, nor did Falcon directly express an opinion regarding

the truthfulness of Palomino’s testimony. See Cohn v. State, 849 S.W.2d 817, 818 (Tex. Crim.

App. 1993); Scugoza, 949 S.W.2d at 363. Therefore, the trial court did not abuse its discretion in

admitting Falcon’s testimony. See Scugoza, 949 S.W.2d at 363. Zavala’s first point of error is

overruled.

              RIGHT OF CONFRONTATION AND EXTRANEOUS OFFENSE EVIDENCE

       In his second point of error, Zavala contends that his Sixth Amendment right to

confrontation was violated when Sergeant Mason offered evidence regarding an alleged assault

of Zavala’s ex-wife. Zavala also argues that the trial court abused its discretion in admitting

extraneous evidence of cohabitation and adultery.

A. Standard of Review

       A trial court’s ruling to exclude or admit evidence is reviewed for an abuse of discretion.

De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Montgomery v. State, 810

S.W.2d 372, 379 (Tex. Crim. App. 1990). A reviewing court will uphold the trial court’s ruling



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so long as it was within the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391.

However, we review de novo whether a testimonial statement of a non-testifying declarant was

erroneously admitted into evidence. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).

B. Sixth Amendment Right of Confrontation

       “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him . . . .” U.S. CONST. amend. VI. “[T]he admission of a hearsay

statement made by a non-testifying declarant violates the Sixth Amendment if the statement was

testimonial, and the defendant lacked a prior opportunity for cross-examination.” Wall, 184

S.W.3d at 734 (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)).

C. Analysis

       Sergeant Mason was called as a witness to rebut “the false impression” Zavala left with

jurors when Zavala stated he never assaulted Palomino or his ex-wife and that he never

committed adultery while married to Palomino.          Mason was supervising a collaborative

investigation by the military that was inquiring into the alleged assault of Palomino and Zavala’s

possible extramarital affairs and cohabitation with a junior officer. Mason served in the same

Army company as Zavala but had no personal knowledge of any acts of violence by Zavala.

       1. Evidence of Adultery

       During trial, Mason testified that the investigation revealed Zavala had an extramarital

affair and was “cohabiting” with someone else while he was still married. Zavala argues that

Mason’s reference to cohabitation and adultery was not probative and was greatly prejudicial.

We need not address this issue because Zavala failed to preserve his claim of error. While

Zavala objected to the first question of adultery and cohabitation, he failed to object when the




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same question was asked again five questions later. See Ethington v. State, 819 S.W.2d 854,

859–60 (Tex. Crim. App. 1991).

       2. Evidence of an Extraneous Assault

       The gist of Zavala’s Sixth Amendment argument is that Sergeant Mason offered

inadmissible extraneous hearsay evidence regarding the assault of his ex-wife. He contends that

evidence of a possible assault on his ex-wife was testimonial in nature, and that he was deprived

of the opportunity to cross-examine his ex-wife.

       During direct examination, Zavala voluntarily stated that he had never assaulted his wife

(Palomino), or his ex-wife. In response to his attorney’s question about his arrest for assaulting

Palomino, Zavala stated that he initially thought the criminal charges were brought by his ex-

wife. During rebuttal, the State asked Mason, “If [Zavala] told this jury that he did not assault

his wife or his ex-wife, would that be—would you agree with that or disagree?” Mason

answered, “I would disagree.” The court sustained Zavala’s speculation objection.

       Unlike in Crawford and Wall, Mason never testified as to any testimonial statements

made by Zavala’s ex-wife. In fact, Mason never mentioned Zavala’s ex-wife. Mason merely

answered a vague, ambiguous question. Mason’s subsequent testimony revealed that his answers

to the rebuttal questions were based solely on the military’s investigation of the alleged assault

on Palomino, the alleged extramarital affairs, and cohabitation by Zavala. Mason’s testimony

cannot be construed as offering Zavala’s ex-wife’s testimonial declaration. See Coble v. State,

330 S.W.3d 253, 289–90 (Tex. Crim. App. 2010) (holding that there was no violation of the right

of confrontation where there is no out-of-court statement).

       Zavala also argues on appeal that admission of the same evidence regarding his ex-wife

was unfairly prejudicial and greatly outweighed the probative value of Mason’s third-party-



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hearsay testimony. See TEX. R. EVID. 403. Again, Mason’s testimony cannot be construed as

offering testimony regarding Zavala’s ex-wife; therefore, we need not analyze Mason’s

testimony about an extraneous offense against his ex-wife under Rule 403.

       Because the trial court never admitted a hearsay statement made by Zavala’s ex-wife, the

rebuttal witness’s testimony did not violate Zavala’s Sixth Amendment right of confrontation.

See Crawford v. Washington, 541 U.S. 36, 51 (2004); Wall v. State, 184 S.W.3d 730, 734 (Tex.

Crim. App. 2006). Therefore, Zavala’s second point of error is overruled.

                                         CONCLUSION

       Reviewing the record under the appropriate standards of review, we hold that the trial

court did not abuse its discretion in admitting the expert testimony of Maria Falcon.

Additionally, we hold the admission of Sergeant Mason’s testimony related to the investigation

did not violate Zavala’s Sixth Amendment right of confrontation. Therefore, we affirm the trial

court’s judgment.


                                                           Rebecca Simmons, Justice


DO NOT PUBLISH




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