                                     NUMBER
                                  13-10-00525-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

HECTOR CAVAZOS JR.,                                                       Appellant,

                                          v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 148th District Court
                         of Nueces County, Texas.


                        MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
                Memorandum Opinion by Justice Garza
      A jury convicted appellant, Hector Cavazos Jr., of two counts of aggravated

sexual assault of a child, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021(a),

(e) (West Supp. 2010). The trial court found the State‘s enhancement allegations ―true,‖

assessed punishment at sixty years‘ imprisonment on each count, and ordered the
sentences to be served concurrently. See id. § 12.42(c)(1) (West Supp. 2010). By six

issues, appellant contends: (1) the evidence is insufficient to support his conviction

because the child victim did not specifically identify him; (2) the trial court erred in

admitting certain evidence (issues two, three and four); (3) the prosecutor engaged in

prosecutorial misconduct (issue five); and (4) the trial court erred in denying his motion

for new trial alleging ineffective assistance of counsel (issue six). We affirm.

                                                  I.       BACKGROUND

        The State presented the testimony of five witnesses, including the testimony of:

(1) Texas Ranger Roberto D. Garza Jr., who investigated the case; (2) C.T., the victim‘s

mother; (3) A.L., the child victim; (4) Leigh Motes, A.L.‘s therapist; and (5) Ricardo

Jimenez, interviewer at the Children‘s Advocacy Center of the Coastal Bend, who

interviewed A.L.

        A.L. was thirteen years old at the time of trial. She testified that when she was

five and six years old, appellant lived with her and C.T. On at least five occasions, while

C.T. was at work, appellant tied A.L. to the bed and raped her. C.T., who was then

pregnant with appellant‘s child, worked as a telemarketer and frequently left A.L. at

home with appellant.1 A.L. testified that the first assault occurred after she had been

playing outside and went inside to use the restroom. Appellant slapped her and locked

her in her room. Appellant refused to unlock the door and A.L. urinated on herself.

Eventually, appellant unlocked the door, took A.L. into the bedroom he shared with C.T.,

removed A.L.‘s clothes, and tied her to the bed with a rope he retrieved from the closet.

Appellant removed his clothes and put his penis in A.L.‘s vagina.                            A.L. screamed


        1
          Appellant is not A.L.‘s biological father. A.L. testified that she has had very little contact with her
biological father.

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because it was painful. Appellant put his mouth on her vagina. He covered her mouth

to prevent her from screaming and penetrated her vagina with his penis a second time.

Appellant threatened A.L. and told her not to tell anyone about the incident. Appellant

untied A.L. and told her to take a shower. When C.T. came home, she found A.L. with

wet hair and a slap mark on her face. A.L. told C.T. that appellant slapped her because

she had wet herself.

      Approximately six months later, Child Protective Services (CPS) removed A.L.

from the home. For a while, A.L. lived with her paternal grandmother. A.L. told her

grandmother about the assaults, hoping that her grandmother would relate the events to

C.T. A.L. did not tell C.T. about the assaults because C.T. was doing drugs. Instead of

telling C.T., however, A.L.‘s grandmother reported the assaults to CPS and the police.

A.L. testified that she did not want the police involved because she was afraid appellant

would harm C.T. and her infant half-brother. In April 2004, A.L. was taken to a doctor.

A.L. told the doctor that she had been assaulted by appellant‘s nephew, ―Junior.‖ A.L.

was taken to Driscoll Children‘s Hospital, but she did not report the assault because she

was ―still scared.‖ Thereafter, A.L. was placed in several foster homes.

      In 2007, A.L. was returned to C.T. Two years later, in November 2009, when

appellant was no longer living with C.T., A.L. finally told C.T. about the 2003 assaults.

Sometime later, in response to pressure from C.T., A.L. recanted her allegations against

appellant and claimed that she had been assaulted by her biological father, not

appellant. C.T. reported this information to Ranger Garza. Ranger Garza testified that

he reviewed A.L.‘s ―compelling statement‖ taken at the Children‘s Advocacy Center, in

which she alleged that appellant had assaulted her.       Ranger Garza said he ―knew



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something was wrong‖ and re-interviewed C.T. C.T. admitted that she had pressured

A.L. into recanting. A.L. testified that she had lied when she said that ―Junior‖ and her

father assaulted her because she did not ―want anybody to get hurt.‖ She testified that

appellant was the only person who had ever touched her in a sexual way.

          II. SUFFICIENCY OF EVIDENCE IDENTIFYING APPELLANT AS PERPETRATOR

   A.    Standard of Review

        The court of criminal appeals has held that there is ―no meaningful distinction

between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-

sufficiency standard‖ and that the Jackson standard ―is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt.‖ Brooks v. State, 323 S.W.3d 893, 902–03, 912 (Tex. 2010) (plurality

op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly, we review

claims of evidentiary sufficiency under ―a rigorous and proper application of the Jackson

standard of review.‖ Id. at 906–07, 912. Under the Jackson standard, ―the relevant

question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.‖ Jackson, 443 U.S. at 319; see Brooks, 323 S.W.3d

at 898–99 (characterizing the Jackson standard as: ―Considering all of the evidence in

the light most favorable to the verdict, was a jury rationally justified in finding guilt

beyond a reasonable doubt‖). The fact-finder is the exclusive judge of the credibility of

witnesses and of the weight to be given to their testimony. Anderson v. State, 322

S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref‘d) (citing Lancon v.



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State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)). Reconciliation of conflicts in the

evidence is within the fact-finder's exclusive province. Id. (citing Wyatt v. State, 23

S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies in the

testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex.

Crim. App. 2000)).

        We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.—Corpus Christi 2004, pet. ref‘d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). ―Such a charge [is] one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State‘s burden of

proof or unnecessarily restrict the State's theories of liability, and adequately describes

the particular offense for which the defendant was tried.‖ Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).

   B.    DISCUSSION

        Appellant challenges only the identity element of the offense, arguing that during

A.L.‘s testimony, she did not formally identify him and used ―unclear‖ pronouns such as

―he‖ and ―his‖ instead of referring to appellant by name. Appellant also argues that

A.L.‘s use of ―unclear pronouns‖ combined with A.L.‘s ―prior recantations and false

outcries‖ render the evidence insufficient to identify appellant. We disagree.

        A.L.‘s testimony regarding the first time she was sexually assaulted was in

response to the prosecutor‘s question, ―[c]an you, please, tell the jury about the first

time that Hector ever touched you.‖ In the course of questioning A.L. about the incident,

the prosecutor asked, ―[a]nd so, you go to—towards the hallway to the bathroom,



                                            5
where‘s the first time you see the defendant, Hector?‖ Although A.L. subsequently

referred to appellant as ―he,‖ we conclude that it is clear that A.L. was referring to

appellant. A.L. testified that she finally told C.T. about the assaults when she felt a little

―safe‖ and believed that appellant was far away.           In questioning A.L. about her

recantation and allegation that A.L.‘s father committed the assault, the prosecutor

asked, ―[h]ow long did it take you to tell your mom that wasn‘t true, that it was Hector?‖

A.L. responded, ―[t]hree days after.‖ When asked, ―has anybody other than Hector ever

touched you in that way, in a sexual way?‖ A.L. responded, ―[n]o, ma‘am.‖ On cross-

examination, defense counsel asked A.L., ―[a]nd then, it was about two years later [after

returning to C.T. in 2007] that you told [C.T.] that Hector did this to you.‖            A.L.

responded, ―[y]es.‖

       During his testimony, Ranger Garza identified appellant as ―Hector Cavazos.‖

C.T. also specifically identified appellant as ―Hector Cavazos.‖        Leigh Motes, A.L.‘s

therapist, testified that A.L. identified appellant as her abuser. Viewing the evidence in

the light most favorable to the jury‘s verdict, we find the evidence was sufficient for a

rational jury to have found that appellant was the perpetrator of the assaults.          See

Brooks, 323 S.W.3d at 898–99. We overrule appellant‘s first issue.

                                III. ADMISSION OF EVIDENCE

   A. Extraneous Offense Evidence

       By his second issue, appellant contends the trial court erred in permitting C.T. to

testify that she and appellant frequently used drugs in A.L.‘s presence when A.L. was

five and six years old. Appellant contends that this ―extraneous offense‖ should not




                                              6
have been admitted, and that he was harmed by the admission of this ―highly prejudicial

information.‖

       During the State‘s direct examination of C.T., the following exchange occurred:

       Q [Prosecutor]:            Was there drug use in your household?

       A [C.T.]:                  Yes.

       Q:                         And was it frequent?

       [Defense counsel]: Object to the relevance of this, Your Honor.

       [the Court]:               Overruled.

Appellant also asserts that his relevance objection at trial preserved his argument on

appeal that the evidence was inadmissible under Rule 404(b).

   1. Standard of Review and Applicable Law2

       We review a trial court's decision to admit evidence for an abuse of discretion.

Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). A trial court abuses its

discretion only if its decision is ―so clearly wrong as to lie outside the zone within which

reasonable people might disagree.‖ Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim.

App. 2008). If the trial court's decision is correct on any theory of law applicable to the

case, we will uphold the decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.

App. 2009). Furthermore, improper admission of evidence is harmless if the same or

similar evidence is admitted without objection at another point in the trial. See Estrada

v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting that any preserved

error with respect to admission of complained-of evidence was harmless in light of ―very

similar‖ evidence admitted without objection); Prieto v. State, 337 S.W.3d 918, 922

(Tex. App.—Amarillo 2011, no pet) (citing Coble v. State, 330 S.W.3d 253, 282 (Tex.
       2
           The standard of review applies to appellant‘s second, third, and fourth issues.

                                                      7
Crim. App. 2010)). ―[A]ppellate arguments must correspond with the objection at trial.‖

See Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994).

   2. Discussion

       We disagree with appellant‘s assertion that his relevance objection preserved his

objection under Rule 404(b). See Camacho v. State, 864 S.W.2d 524 (Tex. Crim. App.

1993) (noting that hearsay and relevancy trial objections did not preserve appellate

claim based on extraneous offense under Rule 404(b)).

       Even if appellant‘s relevancy objection had preserved his Rule 404(b) objection,

we conclude that appellant failed to preserve any issue because his objection was

untimely. ―A timely and specific objection is required to preserve error for appeal.‖

Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008). ―If a defendant fails to

object until after an objectionable question has been asked and answered, and he can

show no legitimate reason to justify the delay, his objection is untimely, and any claim of

error is forfeited.‖ Id. Appellant‘s objection to C.T.‘s testimony was untimely because it

was made after the question about drug use was asked and answered. We overrule

appellant‘s second issue.

   B. Opinion Testimony

       By his third issue, appellant contends that the trial court erred in admitting

allegedly improper opinion testimony by C.T. C.T testified that at some point after A.L.

told her about the assaults, she took A.L. to visit appellant because she ―wanted to see

[appellant‘s] reaction.‖ The following exchange occurred:

       Q [Prosecutor]:             Tell me what you saw.




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A [C.T.]:            I saw [appellant] look at her up and down like
                     she was an adult, [and] say, ―Wow, [A.L.],
                     you‘ve gotten big.‖

Q:                   And when you say, ―like she was an adult,‖
                     what do you mean by that?

A:                   Like, he looked at her like she was a woman
                     on the street, waiting to—

[Defense Counsel]:   Object to speculation, Your Honor.

[Prosecutor]:        Think that—

[the Court]:         The objection‘s overruled.

[Prosecutor]:        Thank you.

Q [Prosecutor]:      Go ahead.

A [C.T.]:            Waiting to be, what you wanna call, ―screwed,‖
                     ―laid.‖

Q:                   And that‘s the way he looked at her.

A:                   Yes.

Q:                   How did she look at him?

A.                   Scared. Head down, like she always did.

Q:                   And did you get what you wanted out of that
                     visit?

A:                   Yes.

Q:                   And when you left from that visit, what did you
                     think?

A:                   I knew that he had really did [sic] what she had
                     told me he had did.




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        Appellant cites Texas Rule of Evidence 7013 and Fairow v. State, 943 S.W.2d

895, 899 (Tex. Crim. App. 1997), in arguing that C.T. offered her opinion regarding

appellant‘s mental state, but did not ―establish that her opinion [was] based on her

rational perception.‖ The State argues that appellant failed to preserve any issue for

review because his speculation objection at trial did not comport with his Rule 701

objection on appeal.

        We need not decide whether appellant‘s ―speculation‖ objection preserved his

Rule 701 objection, however, because even if we were to assume arguendo that the

trial court erred in permitting C.T.‘s testimony, admission of this testimony would be

harmless. Texas Rule of Appellate Procedure 44.2(b) provides that a nonconstitutional

error ―that does not affect substantial rights must be disregarded.‖ See TEX. R. APP. P.

44.2(b). ―We have determined that substantial rights are not affected by the erroneous

admission of evidence ‗if the appellate court, after examining the record as a whole, has

fair assurance that the error did not influence the jury, or had but a slight effect.‘‖

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (quoting Reese v. State,

33 S.W.3d 238, 243 (Tex. Crim. App. 2000)).                     Here, appellant objected to C.T.‘s

description and characterization of how appellant looked at A.L. A few moments later,

C.T. testified, without objection, that after the visit, she believed A.L.‘s allegations. The

jury heard A.L.‘s testimony describing the assaults and was free to judge the credibility


        3
            Texas Rule of Evidence 701 states:

        If the witness is not testifying as an expert, the witness‘ testimony in the form of opinions
        or inferences is limited to those opinions or inferences which are (a) rationally based on
        the perception of the witness and (b) helpful to a clear understanding of the witness‘
        testimony or the determination of a fact in issue.

TEX. R. EVID. 701.


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of the witnesses.     See Anderson, 322 S.W.3d at 405.            We conclude that C.T.‘s

testimony describing how appellant looked at A.L. had little, if any, effect on how the jury

judged the credibility of the witnesses and the weight to be given to their testimony.

See id. Under these circumstances, we have a fair assurance that the evidence in

question did not influence the jury or had but slight effect. See Solomon, 49 S.W.3d at

365. We overrule appellant‘s third issue.

   C. Testimony Regarding A.L.’s Truthfulness

       By his fourth issue, appellant contends that the trial court erred in admitting

testimony by Motes, A.L.‘s therapist, regarding A.L.‘s truthfulness. Appellant refers to

the following exchange:

       Q [Prosecutor]:      Have you, uh, in any of the time you‘ve been treating
                            her, have you ever, uh, felt that she was
                            disassociating or creating stories with regard to the
                            assault itself?

       A [Motes]:           No. No. Um, no, I haven‘t.

       [Defense counsel]: Your Honor, I‘d object to this line of questioning, in
                          that, she—she‘s trying to invade the juries [sic]
                          province, that she‘s—I don‘t think it‘s proper to ask do
                          you believe the witness is telling the truth or not. I
                          don‘t think that‘s a proper question of this witness and
                          I would object. That‘s the jury‘s job.

The trial court overruled the objection.      The State argues that appellant failed to

preserve the issue because his objection came after the question was asked and

answered. We agree with the State. See Luna, 268 S.W.3d at 604 (―If a defendant fails

to object until after an objectionable question has been asked and answered, and he

can show no legitimate reason to justify the delay, his objection is untimely, and any

claim of error is forfeited.‖). We overrule appellant‘s fourth issue.



                                             11
                            IV. PROSECUTORIAL MISCONDUCT

       By his fifth issue, appellant complains about three alleged instances of

prosecutorial misconduct: (1) that the State improperly elicited testimony from Ranger

Garza that A.L. was ―very truthful‖ in her behavior; (2) that the State improperly elicited

testimony from Motes that A.L.‘s behavior and symptoms were consistent with sexual

abuse; and (3) that in closing argument, the State misstated the law regarding the

meaning of ―reasonable doubt.‖

       As the State notes, appellant did not object to any of these alleged instances of

prosecutorial misconduct. Therefore, nothing is preserved for our review. See Estrada

v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010) (noting that a defendant‘s failure

to object to a jury argument forfeits his right to complain about the argument on appeal);

Watkins v. State, 333 S.W,3d 771, 780 (Tex. App.—Waco 2011, pet. ref‘d) (―A timely

objection regarding prosecutorial misconduct is necessary to preserve error for

purposes of appeal.‖). We overrule appellant‘s fifth issue.

              V. MOTION FOR NEW TRIAL ALLEGING INEFFECTIVE ASSISTANCE

       By his sixth issue, appellant contends the trial court erred in overruling his motion

for new trial alleging that his trial counsel was ineffective. The State responds that

appellant failed to preserve any issue because he failed to present his motion for new

trial. We agree with the State. The record does not reflect that appellant presented his

motion. See Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005) (noting that a

reviewing court may not grant a new trial if the motion for new trial was not presented or

ruled upon by the trial court). Because appellant failed to present his motion for new




                                            12
trial, see TEX. R. APP. P. 21.6, he has waived his claim that the trial court abused its

discretion by denying his motion for new trial. We overrule appellant‘s sixth issue.

                                    VI. CONCLUSION

      We affirm the trial court‘s judgment.



                                                   ________________________
                                                   DORI CONTRERAS GARZA
                                                   Justice


Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
29th day of December, 2011.




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