                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-10-00393-CR

RICHARD CASAREZ LOPEZ,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 09-04380-CRF-361


                           MEMORANDUM OPINION


       A jury convicted Richard Casarez Lopez of the offense of aggravated sexual

assault of a child and assessed his punishment at thirty-five years’ imprisonment and a

$5,000 fine. Lopez raises two issues on appeal. We will affirm.

                              Sufficiency of the Evidence

       We begin with Lopez’s second issue, which contends that the evidence is

insufficient to support his conviction. The Court of Criminal Appeals has expressed our

standard of review of a sufficiency issue as follows:
               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S.Ct.

at 2793.         Furthermore, direct and circumstantial evidence are treated equally:

“Circumstantial evidence is as probative as direct evidence in establishing the guilt of

an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper,

214 S.W.3d at 13. Finally, it is well established that the factfinder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        When P.B. was age nine, her stepfather invited Lopez to stay as a guest in their

home. P.B. shared a room with her brother, and Lopez stayed in another bedroom. P.B.

testified that one night after she and her brother went to bed, Lopez came into her

Lopez v. State                                                                              Page 2
room. Lopez woke her up and asked if she wanted to go watch television with him.

Lopez then took her in the bedroom where he was staying and told her to lie down on

the bed. P.B. stated that Lopez told her to take off her pants. She complied because she

was afraid. P.B. testified that Lopez put his mouth on her “front part.” P.B. further

testified that Lopez used his tongue on her private part.

        P.B. said that Lopez told her to go back to her room and not to tell anyone. P.B.

went into her room so that Lopez would think she was going to sleep. After Lopez

closed his bedroom door, P.B. went and told her mother what happened.

        Subsection 22.021(a) of the Penal Code provides that:

        (a) a person commits an offense:
               (1) if the person:
               …
               (B) intentionally or knowingly:
               …
               (iii) causes the sexual organ of a child to contact or penetrate the
        mouth, anus, or sexual organ of another person, including the actor;

TEX. PENAL CODE ANN. § 22.021(a) (West Supp. 2011). Lopez acknowledges that P.B.

testified to facts supporting each element of the offense, but he argues that the record as

a whole conclusively establishes a reasonable doubt.

        Lopez argues that inconsistencies in the testimony of P.B.’s mother and step-

father create reasonable doubt. Anthony Valdez testified that Lopez had spent a week

in their home before the incident, and Christene Valdez testified that Lopez had spent

only one night in the home. Anthony testified that there was only one bed in P.B’s

room and that the children took turns sleeping in the bed and on a pallet on the floor.

Christene testified that there were two twin beds in the room. Anthony stated that he

Lopez v. State                                                                        Page 3
and Lopez returned to the house around 3:00 or 4:00 in the afternoon and that they sat

outside drinking beer. Christene said that the men returned home around 8:00 p.m. and

that they stayed in the house watching football. The jury is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

presented by the parties. Chambers, 805 S.W.2d at 461.

        Lopez also argues that there is no physical evidence connecting him to the

offense and that there is no evidence other than P.B.’s allegations. A conviction under

section 22.021 is supportable on the uncorroborated testimony of the victim of the

sexual offense. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2011); Abbott v.

State, 196 S.W.3d 334, 341 (Tex. App.—Waco 2006, pet. ref’d); Tear v. State, 74 S.W.3d

555, 560 (Tex. App.—Dallas 2002, pet. ref’d). After reviewing all of the evidence, we

find that a rational fact finder could have found the essential elements of the crime

beyond a reasonable doubt. We overrule the second issue.

                          Admission of Opinion Testimony

        Lopez complains in his first issue that the trial court erred in allowing the

opinion testimony of T’Shaina Everitt. We review a trial court’s decision to admit or

exclude evidence for an abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576

(Tex. Crim. App. 2005). “Under an abuse of discretion standard, an appellate court

should not disturb the trial court's decision if the ruling was within the zone of

reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).

        Everitt is a licensed marriage and family therapist.   She testified about the

behavioral characteristics exhibited by victims of sexual abuse.      These symptoms

Lopez v. State                                                                    Page 4
include hypervigilance, depression, nightmares, low self-esteem, inappropriate peer

relationships, guilt, and shame. Everitt stated that she treated P.B. for nightmares,

sleeping trouble, and irrational fears. She said that P.B. also showed signs of low self-

esteem, relationship difficulties, and shame.    Everitt further testified that P.B. had

symptoms consistent with sexual abuse.

        Lopez contends that Everitt’s testimony was inadmissible under Rule of

Evidence 702 as a direct comment on P.B.’s truthfulness. An expert witness may not

offer a direct opinion on the truthfulness of a child complainant’s allegations. Schutz v.

State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). Expert testimony that a child exhibits

behavioral characteristics that have been empirically shown to be common among

children who have been sexually abused is relevant and admissible under Rule 702.

Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993); Chavez v. State, 324 S.W.3d

785, 789 (Tex. App.—Eastland 2010, no pet.); Gonzales v. State, 4 S.W.3d 406, 417 (Tex.

App.—Waco 1999, no pet.). Such testimony is not objectionable on the ground that it

bolsters the credibility of the child complainant. Cohn, 849 S.W.2d at 820-21; Chavez, 324

S.W.3d at 789. Everitt did not testify that she believed sexual abuse occurred, and she

did not provide a direct opinion that P.B. was telling the truth. Everitt’s testimony that

P.B. showed characteristics consistent with sexual abuse was not a comment on her

truthfulness.

        Lopez also contends that Everitt’s testimony should have been excluded under

Rule of Evidence 403 because the probative value of the testimony was outweighed by

the danger of unfair prejudice. A trial court, when undertaking a Rule 403 analysis,

Lopez v. State                                                                      Page 5
must balance (1) the inherent probative force of the proffered item of evidence—that is,

how strongly it serves to make more or less probable the existence of a fact of

consequence to the litigation—along with (2) the proponent’s need for that evidence

against (3) any tendency of the evidence to suggest a decision on an improper basis, (4)

any tendency of the evidence to confuse or distract the jury from the main issues, (5)

any tendency of the evidence to be given undue weight by a jury that has not been

equipped to evaluate the probative force of the evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.

Crim. App. 2006). Considering all of the factors, we do not find that the trial court

abused its discretion in finding that the probative value of the evidence was

outweighed by the danger of unfair prejudice.

        The trial court did not abuse its discretion in admitting Everitt’s testimony. We

overrule the first issue.

        Having overruled both issues, we affirm the trial court’s judgment.




                                           REX DAVIS
                                           Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 6, 2012
Do not publish
[CRPM]

Lopez v. State                                                                     Page 6
