             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-18-00041-CR
      ___________________________

      RYAN LEE DANIEL, Appellant

                      V.

          THE STATE OF TEXAS


   On Appeal from the 90th District Court
          Young County, Texas
          Trial Court No. 10801


Before Sudderth, C.J.; Pittman and Birdwell, JJ.
  Memorandum Opinion by Justice Pittman
                           MEMORANDUM OPINION

      A jury convicted Appellant Ryan Lee Daniel of continuous sexual abuse of a

child, the complainant Jane Doe 16-6, and assessed his punishment at life

imprisonment.1 The trial court sentenced him accordingly. In three issues, Appellant

contends that the forensic interviewer was not the proper outcry witness and that the

trial court reversibly erred by allowing questions regarding the credibility of Jane’s

allegations and Appellant’s denials and by admitting the witnesses’ answers to those

questions. We hold (1) that the trial court did not abuse its discretion by designating

the forensic interviewer as the outcry witness and (2) that Appellant did not preserve

his remaining evidentiary complaints, obviating the need for a harm analysis. We

therefore affirm the trial court’s judgment.

                                    DISCUSSION

I.    Forensic Interviewer Kayla Voorhees Was the Proper Outcry Witness. 2

      In his first issue, Appellant contends that the trial court erred by designating

forensic interviewer Kayla Voorhees as the outcry witness. See Tex. Code Crim. Proc.

Ann. art. 38.072.


      1
        We use aliases to refer to the complainant and her family members. See Tex.
R. App. P. 9.10(a); Daggett v. State, 187 S.W.3d 444, 446 n.3 (Tex. Crim. App. 2005);
Wilson v. State, 442 S.W.3d 779, 782 n.1 (Tex. App.—Fort Worth 2014, pet. ref’d).
      2
        Because Appellant does not challenge the sufficiency of the evidence, we omit
a statement of facts.



                                               2
      A.     The First Adult Jane Communicated With About Appellant’s
             Touching Her Was Her Stepmother.

      While twelve-year-old Jane was staying out of town with her father during the

summer of 2016, she told her friend and stepsister—both minors—that Appellant,

Jane’s stepfather, had been sexually abusing her in her Young County home. Those

girls, in turn, told Jane’s stepmother (Stepmother), who immediately asked Jane about

it. Jane’s father and Stepmother reported Appellant’s alleged sexual abuse of Jane to

their local police department and to Child Protective Services, and after Jane returned

to her Young County home, she was forensically interviewed by Kayla Voorhees, who

was then the Advocacy Center Program Manager and Forensic Interviewer at the local

child advocacy center.

      B.     The State Gave Notice That It Intended to Treat Forensic
             Interviewer Voorhees as the Outcry Witness.

      The State’s written notice of intent to use Voorhees as the outcry witness

indicates that Jane told Voorhees that:

      •      When Jane was around eleven years old, Appellant licked and squeezed
             her breasts;

      •      When Jane was almost twelve years old, Appellant touched her genitals
             and penetrated them with his fingers and tongue;

      •      These acts happened at night in Jane’s bedroom; and

      •      Appellant “generally did these same acts probably two times a week
             during the period in question.”




                                          3
      C.     Jane Responded to Stepmother’s Questions About Appellant’s
             Touching Her, but Only by Moving Her Head and Hands.

      At the Article 38.072 hearing, Stepmother testified that when she questioned

Jane, the child “could not verbally speak. She had all but shut down, but she could

nod her head ‘yes’ and nod her head ‘no,’ and she used hand motions to kind of

elaborate what was going on” in response to Stepmother’s questions. Stepmother

admitted that Jane never verbally told her that Appellant committed “any certain type

of offense” against her. On cross-examination by defense counsel, the following

exchange occurred:

      Q.                        And these questions you’re asking her, you’re doing
                                all the talking, correct?
      A.                        Yes, ma’am.
      Q.                        You’re putting words into her mouth basically
                                because she couldn’t talk; is that correct?
      A.                        I would say “no.” I mean, I was basically
                                asking her generalized questions and she was
                                answering them.
      ....
      Q.                        You were asking her very specific questions
                                about a sexual abuse allegation; is that correct?
      A.                        Yes, ma’am.
      Q.                        And you were asking her to give you answers
                                either nodding “yes” or “no,” correct? There
                                was no in between; is that correct?
      A.                        Yes, ma’am.
      ....


                                         4
      Q.                        . . . . Did you ask her did her father3 do
                                something to her; is that correct?
      A.                        I asked her if he was touching her, yes.
      ....
      Q.                        (BY [Defense Counsel]) Did you specifically
                                ask her if her stepfather had touched her
                                vagina?
      A.                        No.
      Q.                        So how did she respond that he touched her?
      A.                        With hand motions.
      Q.                        Okay. And did she respond specifically that
                                he touched her on her vagina?
      A.                        With her hand motions, yes, ma’am.
      Q.                        And how did she respond that he touched her
                                on her vagina with hand motions?
      A.                        She motioned around her genitalia to show
                                that that’s where he had touched her.
      Q.                        And did she specifically place her hands on
                                her vagina?
      A.                        No. She just motioned around it.
      Q.                        So anywhere from the midstomach to the
                                knee, is that what she motioned?
      A.                        Well, it was more generally right here. I took
                                it as the genitalia area.



      It is clear from the context that the “father” referred to here was Appellant,
      3

who had raised Jane and whom she called “Daddy.”



                                         5
Q.     And did you specifically ask her whether or
       not this was the clothes or below the clothes?
A.     I asked both, and she said it was both.
Q.     And she verbalized that, or what did she say?
A.     She nodded her head.
Q.     She did verbalize, or she did acknowledge,
       that it was both under and above the clothes;
       is that correct?
A.     Yes, ma’am.
Q.     What else did you question her about?
A.     I asked her, if it happened, how often it
       happened.
Q.     And did she verbalize an answer?
A.     She could not verbalize an answer at all.
Q.     Did you further question her on anything
       else?
A.     I asked her if it happened daily. She shook
       her head “no.” I asked her if it was maybe
       every other day, or at least a couple of times a
       week, and that’s when she nodded her head
       “yes.”
....
Q.     So the entire time you talked about this you
       talked about where he touched her, whether it
       was over the clothes, under the clothes, and
       how often; is that correct?
A.     Yes, ma’am.
Q.     And did you discuss any other body parts
       involved?


                6
      A.                         No, ma’am.
      Q.                         So she disclosed during her nodding and
                                 nonverbal responses what happened, correct?
      A.                         Yes, ma’am.
      Q.                         How often it happened, correct?
      A.                         Yes, ma’am.
      Q.                         And in the manner in which it happened; is
                                 that right?
      A.                         Yes, ma’am.
      In the State’s argument after the Article 38.072 hearing, the prosecutors stated

without objection:

      [F]or the record, when [Stepmother] was describing the area that this
      defendant was allegedly touching [Jane], [Stepmother] was kind of
      moving her hand in a circular fashion around the hip area, could include
      the genital area, but there was no specific information about anything
      sexual going on at this point in time, but it was obviously concerning
      enough to her that she chose to disclose that to the child’s . . . father.

      ....

      [F]or the record, [Stepmother] made a circular motion generally around
      her shoulders and her breast area as well as around her hip and genital
      area made a circular motion. Whether it was touched under the clothes
      or on the clothes or how many times, we don’t even know what specific
      body part was touched by the nonverbal clues.

      D.     Voorhees’s Testimony at the Hearing Described Specific Offenses
             Jane Told Her Appellant Had Committed.
      Voorhees testified at the Article 38.072 hearing that Jane told her that:

      •      There had been multiple occurrences of Appellant’s misconduct, and
             Jane told Voorhees “in detail of four different occasions”;



                                           7
      •      In the summer when Jane was eleven years old and asleep in her
             bedroom, Appellant “came into her room[,] changed her clothes[, and]
             squeezed her boobs[,] and it hurt”;

      •      Another time, Appellant “came in her room at night after she had been
             asleep, and she [was] . . . facing the wall[.]” “[H]e picked her up[,] laid
             her on her back, . . . pulled off her clothing[,] . . . played with her down
             there,”—which Jane explained meant that he “used his two pointer
             fingers [to] . . . pull[]” her labia apart—, and licked her vaginal area, with
             his tongue “going up and down.”
      E.     The Trial Court Designated Voorhees as the Outcry Witness.
      At the end of the Article 38.072 hearing, the trial court declared:
      Ms. Voorhees is the outcry witness; . . . in looking at the indictment as to
      the specifics of the indictment, there’s nothing mentioned of those
      specifics in what was told to . . . [S]tepmother, so that will be admissible.

      F.     We Review the Trial Court’s Designation of an Outcry Witness for
             an Abuse of Discretion.

      We review the trial court’s decision for an abuse of discretion. Garcia v. State,

792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Espinoza v. State, 571 S.W.3d 427, 430 (Tex.

App.—Fort Worth 2019, pet. ref’d). A trial court abuses its discretion when its

decision lies outside the zone of reasonable disagreement. Henley v. State, 493 S.W.3d

77, 83 (Tex. Crim. App. 2016).

      G.     Article 38.072 of the Texas Code of Criminal Procedures Governs
             the Admissibility of Jane’s Outcry.

      As this court recently explained,

      Article 38.072 [of the Texas Code of Criminal Procedure] allows for the
      admission of an outcry statement by a child in the prosecution of certain
      offenses, including sexual offenses committed against children. As it
      relates to this case, the article applies only to statements by the [child]



                                            8
      complainant . . . that describe the alleged offense and that were made to
      the first person over the age of 18, other than the defendant.

Wilson v. State, No. 02-17-00280-CR, 2018 WL 6215889, at *9 (Tex. App.—Fort

Worth Nov. 29, 2018, no pet.) (mem. op., not designated for publication); see also Tex.

Code Crim. Proc. Ann. art. 38.072. As the Texas Court of Criminal Appeals has

emphasized, however:

      [T]he statement must be more than words which give a general allusion
      that something in the area of child abuse was going on. In picking the
      particular wording of the “first person” requirement, the legislature was
      obviously striking a balance between the general prohibition against
      hearsay and the specific societal desire to curb the sexual abuse of
      children. . . . The portion of the statute catering to the hearsay
      prohibition demands that only the “first person” is allowed to testify.
      But the societal interest in curbing child abuse would hardly be served if
      all that “first person” had to testify to was a general allegation from the
      child that something in the area of child abuse was going on at home.
      Thus we decline to read the statute as meaning that any statement that
      arguably relates to what later evolves into an allegation of child abuse
      against a particular person will satisfy the requisites of [the statute]. The
      statute demands more than a general allusion of sexual abuse.

Garcia, 792 S.W.2d at 91. Courts have interpreted Article 38.072 as providing that the

proper outcry witness is the first adult to whom the child complainant describes how,

when, and where the abuse occurred.            Collins v. State, No. 02-16-00146-CR,

2017 WL 119486, at *6 (Tex. App.—Fort Worth Jan. 12, 2017, pet. ref’d) (mem. op.,

not designated for publication).     Outcries are event-specific, not person-specific,

“meaning that multiple outcry witnesses may testify so long as each of them testifies

to only one event and they do not simply repeat the same event.” Hines v. State,

551 S.W.3d 771, 780 (Tex. App.—Fort Worth 2017, no pet.).


                                           9
      H.     Vorhees Was the Proper Outcry Witness for All the Indictment
             Allegations.

      The trial court did not abuse its discretion by designating Vorhees as the outcry

witness. First, Appellant was indicted for committing continuous sexual abuse of a

child by committing two or more of the following acts of sexual abuse against Jane:

      1.     Indecency with a Child–Sexual Contact, . . . by touching [Jane’s]
             genitals . . . ;

      2.     Aggravated Sexual Assault of a Child, intentionally and knowingly
             caus[ing] the penetration of [Jane’s] sexual organ . . . by
             [Appellant’s] finger; [and]

      3.     Aggravated Sexual Assault of a Child, intentionally and knowingly
             caus[ing] the penetration of [Jane’s] sexual organ . . . by
             [Appellant’s] tongue[.]

Any combination of two of those acts of sexual abuse over the requisite period of

thirty days or more would satisfy the predicate-offense elements of the statute. Tex.

Penal Code Ann. § 21.02(b)(1), (c)(2)–(3), (d). None of Stepmother’s questions

discussed penetration, and Jane did not say anything at all to Stepmother and did not

do anything to indicate to Stepmother that Appellant had penetrated her. The trial

court therefore did not abuse its discretion by designating Voorhees as the outcry

witness regarding the digital and oral penetration allegations because she was the first

adult to whom Jane described Appellant’s alleged acts of digital and oral penetration

of her sexual organ. See Britt v. State, No. 02-17-00168-CR, 2018 WL 2346795, at

*2 (Tex. App.—Fort Worth May 24, 2018, pet. ref’d) (mem. op., not designated for

publication) (“The forensic interviewer was the initial person to whom Megan


                                          10
described the indicted offense of aggravated sexual assault by penetration; therefore,

the interviewer’s testimony was admissible under article 38.072 . . . . Megan’s earlier

statement to the nurse examiner revealed only sexual contact and did not clearly allege

penetration.”).

      Second, regarding the touching of Jane’s genitals, we hold that the trial court did

not abuse its discretion by naming Vorhees as the outcry witness and not Stepmother.

Jane’s nodding to Stepmother’s questions about whether Appellant had “touched” her

and Jane’s hand motions, as vaguely reported by Stepmother in the written record on

which we must rely, did not describe in a discernible way how, when, or where

Appellant touched Jane; did not do more than generally allude to abuse; and did not

amount to an outcry. See Garcia, 792 S.W.2d at 91; Diaz v. State, No. 05-04-00497-CR,

2005 WL 1908421, at *2 (Tex. App.—Dallas Aug. 11, 2005, no pet.) (not designated

for publication) (holding trial court did not abuse discretion by designating forensic

interviewer instead of child’s aunt as outcry witness when child told aunt that the

defendant kissed her with an open mouth, without panties on, and child answered no

when her aunt asked whether he kissed her only on the mouth, pointing to “her part

and behind”); Chapman v. State, 150 S.W.3d 809, 817 (Tex. App.—Houston [14th

Dist.] 2004, pet. ref’d) (op. on reh’g) (holding child’s nodding “yes” when asked if the

defendant did “anything to her in a sexual way” was only a general allusion to abuse).

But see Nino v. State, 223 S.W.3d 749, 753 (Tex. App.—Houston [14th Dist.] 2007, no

pet.) (holding mother who overheard child saying the defendant made him “suck it”

                                          11
immediately before she saw the child point to his own penis and who convinced the

child to tell her what had happened should have been the outcry witness); Bradshaw v.

State, 65 S.W.3d 232, 240 (Tex. App.—Waco 2001, no pet.) (holding child’s statement

to mother that the defendant had been touching her was only a general allusion to

sexual abuse but implicitly holding child’s pointing between her legs when aunt asked

her where the defendant had touched her and child’s statement to aunt that he had

“put his finger inside of her approximately three different times” supported the

designation of aunt as the outcry witness).

      We overrule Appellant’s first issue. 4

II.   Appellant Forfeited His Remaining Evidentiary Complaints, and We Do
      Not Address Harm.

      In his second issue, Appellant complains that the trial court abused its

discretion by asking questions of former City of Graham Police Investigator Jim

Reeves and Texas Ranger Michael Schraub that elicited their opinions about the

truthfulness of Jane’s allegations and Appellant’s denials of those allegations. In his


      4
       We note that each party claims that Jane told the respective witness the party
champions as the outcry witness sufficient details to satisfy the thirty-day requirement
of the continuous sexual abuse statute. See Tex. Penal Code Ann. § 21.02(b)(1) (“A
person commits an offense if . . . during a period that is 30 or more days in duration,
the person commits two or more acts of sexual abuse . . . .”). Both women reported
at the hearing that Jane had indicated multiple incidents and identified Appellant as
the perpetrator. Vorhees went further at trial, testifying that Jane mentioned seasons
and years when specific acts occurred; those details indicated Appellant’s
inappropriate conduct occurred over a period exceeding thirty days.



                                           12
third issue, Appellant complains that the trial court’s errors of allowing the two

officers to opine on Jane’s credibility and his guilt were harmful, resulting in the denial

of a fair trial. The State argues that Appellant forfeited error. We agree.

      A.     Appellant Forfeited Error Regarding Investigator Reeves’s
             Testimony.

             1.     Appellant Did Not Obtain an Adverse Ruling and Did Not
                    Object Every Time Investigator Reeves Indicated That Jane
                    Did Not Lie.

       When the prosecutor asked Investigator Reeves about Appellant’s claim during

his interview with law enforcement that Jane had lied about the abuse she suffered,

the following exchange occurred:

       Q.                          And one of those lies is that [Jane] had lied to
                                   her mother by saying she [sic] had done this
                                   to her. Wasn’t that one of the lies that he
                                   mentioned?

       A.                          Yes, sir.
       Q.                          And what did we learn about that?
       A.                          Absolutely not.       She had not lied.   This girl
                                   stuck—
       [Defense Counsel]:          Objection, Your Honor. Calls for a conclusion on his
                                   part.
       THE COURT:                  Rephrase your question . . . .
       Q. (BY [Prosecutor])        Well, based on what you gathered from your
                                   investigation, was that an out-and-out lie?
       A.                          No. No, she had not lied.
       [Defense Counsel]:          Objection, Your Honor. He’s [sic] calling for a
                                   conclusion that this jury is entitled to make.

                                               13
          THE COURT:                 Well, that’s the jury’s prerogative as to determine the
                                     facts of the case.
          Q. (BY [Prosecutor])       Well, I take it you find some validity to the
                                     allegations.
          A.                         Yes.
          Q.                         Now, as an investigator . . . .
[Emphasis added.]
          Generally, to preserve error, a party must object each time the objectionable

evidence is offered. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003);

Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Clay v. State, 361 S.W.3d

762, 766 (Tex. App.—Fort Worth 2012, no pet.). Further, the party must obtain an

express or implicit adverse ruling from the trial court or object to the trial court’s

refusal to rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262–

63 (Tex. Crim. App. 2013); Martinez v. State, 17 S.W.3d 677, 686 (Tex. Crim. App.

2000). The trial court’s directing the prosecutor to rephrase the question was not a

ruling.        See, e.g., Varela v. State, No. 04-14-00563-CR, 2015 WL 1881551, at *3,

n.1 (Tex. App.—San Antonio Apr. 22, 2015, no pet.) (mem. op., not designated for

publication).       Even if we held that it was a ruling, it would not be adverse to

Appellant. See Tex. R. App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 262–63; Martinez,

17 S.W.3d at 686; Jones v. State, No. 14-06-00292-CR, 2008 WL 323760, at *5 (Tex.

App.—Houston [14th Dist.] Feb. 7, 2008, no pet.) (mem. op., not designated for

publication). Further, by not objecting to the prosecutor’s question about Jane’s



                                               14
allegations’ validity, Appellant allowed the same or similar evidence to that objected

to—Jane is credible—to be admitted without an objection. We therefore hold he

forfeited error regarding these two objections.

             2.       Appellant’s “Speculation” Objection to Investigator
                      Reeves’s Testimony About Appellant’s Lack of Credibility
                      Does Not Match His Appellate Complaint.

      The next section of questions, answers, and objections Appellant discusses

involves the prosecutor’s questioning Investigator Reeves about the interview he and

Ranger Schraub conducted with Appellant:

      Q.                         And, as it was quite noticeable that as time
                                 went on in the interview the defendant was
                                 beginning to—I don’t know whether he felt
                                 trapped inasmuch as y’all had let him know
                                 that there were possibly videos of things that
                                 were occurring, but he became a little more
                                 forthcoming. Would you say that he was still
                                 minimizing, or do you think he was out and
                                 out telling you everything that happened?

      [Defense Counsel]:         Objection, Your Honor. Speculation.

      [Prosecutor]:              I’m asking for his opinion as an investigator.

      THE COURT:                 I’ll allow his opinion.

      THE WITNESS:               In my opinion, he was not being truthful. He
                                 started out not being truthful, and, even
                                 though he did make some concessions when
                                 confronted with evidence, or possible
                                 evidence, at the end of the interview, it’s still
                                 my opinion that he was being dishonest. He
                                 was not being truthful with us.

[Emphasis added.]


                                          15
      The complaint made on appeal must comport with the complaint made in the

trial court or the error is forfeited. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.

App. 2012); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A

complaint will not be preserved if the legal basis of the complaint raised on appeal

varies from the complaint made at trial.”); Pena v. State, 285 S.W.3d 459, 464 (Tex.

Crim. App. 2009) (“Whether a party’s particular complaint is preserved depends on

whether the complaint on appeal comports with the complaint made at trial.”). To

determine whether the complaint on appeal conforms to that made at trial, we

consider the context in which the complaint was made and the parties’ shared

understanding at that time. Clark, 365 S.W.3d at 339; Resendez v. State, 306 S.W.3d

308, 313 (Tex. Crim. App. 2009); Pena, 285 S.W.3d at 464.

      Appellant’s complaint on appeal is that Investigator Reeves, whether as an

expert or lay witness, improperly testified about Appellant’s credibility. Appellant’s

speculation objection at trial to the prosecutor’s question did not sufficiently inform

the trial court of his appellate complaint and does not comport with his appellate

complaint. See Rogers v. State, 402 S.W.3d 410, 416–17 (Tex. App.—Houston [14th

Dist.] 2013) (holding speculation objection did not comport with appellate complaint

that officer invaded the jury’s province by improperly commenting on witness’s

truthfulness and was not sufficient to inform the trial court of the appellate

complaint), judgm’t vacated on other grounds, 426 S.W.3d 105 (Tex. Crim. App. 2014) (on

State’s petition for review, reversing intermediate court’s judgment that affirmed the

                                          16
conviction and sentence but deleted amount of costs assessed); see also Herrera v. State,

Nos. 07-17-00166-CR, 07-17-00167-CR, 07-17-00168-CR, 2018 WL 1868124, at

*1 (Tex. App.—Amarillo Apr. 18, 2018, no pet.) (per curiam) (mem. op., not

designated for publication) (holding defendant’s speculation objection to officer’s

testimony that defendant was not telling truth during his interrogation did not

preserve his appellate argument that “Rule of Evidence 702 prohibits an expert

witness from testifying that a particular witness is truthful”). We therefore hold that

Appellant forfeited error regarding this objection.

      We note that even if Appellant preserved his appellate complaint here, his

failure to object to Investigator Reeves’s testimony that he was not forthcoming about

the abuse in the interview and his failure to object to all of Ranger Schraub’s

testimony that he was deceptive in the interview would have rendered any error

harmless. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); see also

Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (“Inadmissible evidence

can be rendered harmless if other evidence at trial is admitted without objection and it

proves the same fact that the inadmissible evidence sought to prove.”).

             3.     Appellant’s Objection to Investigator Reeves’s Testimony
                    that Appellant Was Not Telling the Truth When He Stated
                    that He Could Have Accidentally Touched Jane’s Genitals
                    Was Invalid; Regardless, Appellant Did Not Secure an
                    Adverse Ruling.
      Appellant’s next complaint concerns the following exchange:




                                           17
       Q. (BY [Prosecutor])          Now, when the defendant was talking to you
                                     about accidentally touching this child’s vagina,
                                     what, in your opinion, is the defendant doing
                                     when he says something of that nature?
       A.                            He’s minimizing his actions.
       Q.                            In fact, how would you . . . characterize a statement
                                     like that?
       A.                            It’s not a truthful statement.
       [Defense Counsel]:            Objection, Your Honor. Invades the province of the
                                     jury.
       THE COURT:                    Rephrase your question, [Prosecutor], or move on to
                                     something else.
       [Prosecutor]:                 I’ll move on, Your Honor.
[Emphasis added.]
       An objection that a question or evidence “invades the province of the jury” is

no longer a valid objection to opinion testimony in light of Rule 704 of the Texas

Rules of Evidence, which states that “[a]n opinion is not objectionable just because it

embraces an ultimate issue.” Tex. R. Evid. 704; Ortiz v. State, 834 S.W.2d 343,

348 (Tex. Crim. App. 1992), superseded by statute on other grounds as stated in Ellison v. State,

201 S.W.3d 714, 717 (Tex. Crim. App. 2006). Further, as we stated above, the trial

court’s instructing the prosecutor to rephrase the question was not an adverse ruling.

See Tex. R. App. P. 33.1(a)(2); Varela, 2015 WL 1881551, at *3, n.1; Jones,

2008 WL 323760, at *5. We therefore hold that Appellant forfeited error regarding

this objection.



                                               18
             4.       Appellant Did Not Object Every Time Investigator Reeves
                      Indicated that Appellant Was Lying in the Pre-Interview
                      Encounter Appellant Had at the Young County Sheriff’s
                      Office.

      The final objection Appellant discusses regarding the prosecutor’s direct

examination of Investigator Reeves was lodged during questioning regarding a video

recorded when Jane’s mother and Appellant went to the Young County Sheriff’s

Office and reported to an Officer Ford that Jane’s father had called to tell them about

her allegations that Appellant had sexually abused her:

      Q.                         Well, when you reviewed that interview that
                                 took place over at the Sheriff’s Office with
                                 Officer Ford, now, the defendant, . . . was he
                                 lying during that?

      A.                         Yes, ma’am.
      [Defense Counsel]:         Objection, Your Honor. Invades the province of the
                                 jury.
      THE COURT:                 Well, you have to be more specific, [Prosecutor]. Just
                                 a general sense, that’s not allowed.
      Q. (BY [Prosecutor])       Was he being deceptive, in your opinion, as an
                                 investigator as to the allegation?
      [Defense Counsel]:         Objection, Your Honor. I don’t believe that the
                                 detective gets to tell the jury whether or not he’s a liar
                                 or whether or not he’s truthful.
      [Prosecutor]:              I asked his opinion as an investigator, Your
                                 Honor.
      THE COURT:                 Well, I think you have to elaborate more than just
                                 that—
      [Defense Counsel]:         Your Honor, I will state for the record that
                                 the prosecution and the police will always

                                           19
                       think the defendant is going to lie, so we can
                       stipulate that.
[Prosecutor]:          Objection to the sidebar, Judge.
THE COURT:             Reask the question, [Prosecutor].
Q. (BY [Prosecutor])   When you were reviewing the video and the
                       defendant was with Officer Ford, he
                       essentially denied anything ever having
                       happened with this girl that was sexual; is that
                       correct?
A.                     That’s correct, yes ma’am.
Q.                     And what did he later tell you in his interview?
A.                     That it had.
Q.                     Okay, so how would you characterize the statements
                       that he made at the Law Enforcement Center?
A.                     He was lying.
Q.                     Okay. And then . . . during his interview, did
                       he ever tell you about anything that happened
                       on E Street?
A.                     No.
Q.                     Did he ever tell you anything about licking her
                       boobs?
A.                     No.
Q.                     Did he ever tell you about the oral sex that
                       took place?
A.                     No.
Q.                     And so, based on everything that you learned
                       from the forensic interview, would it be your
                       opinion that he was not being forthcoming
                       about the actual abuse that occurred?


                                 20
      A.                          That’s absolutely correct.
[Emphasis added.]

      To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion that states the specific grounds for the

desired ruling if they are not apparent from the context of the request, objection, or

motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim.

App. 2015). Even if Appellant’s initial objections had preserved his complaints—

which we do not hold—we reiterate that the preservation rules require a party to

object each time objectionable evidence is offered unless the party has obtained a

running objection or has requested a hearing outside the presence of the jury. Geuder,

115 S.W.3d at 13; see also Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)

(explaining that Texas applies the “futility rule,” meaning that even after a trial court

overrules an objection to evidence, a party must keep making “futile” objections on

pain of waiver).    Thus, when Appellant chose not to repeat his objection to

Investigator Reeves’s testimony that Appellant was lying, he forfeited any error.

      We note that even if Appellant had preserved the objection and even if the trial

court had erred, the later admission of the unobjected-to testimony that Appellant

was lying to Officer Ford at the sheriff’s office would have rendered such error

harmless. See Valle, 109 S.W.3d at 509; see also Anderson, 717 S.W.2d at 628.




                                           21
      B.     Appellant Forfeited Error Regarding Texas Ranger Michael
             Schraub’s Testimony.
      Ranger Schraub, who participated in the law enforcement interview of

Appellant, also testified. Appellant complains of the following exchange:


      Q.                         Okay. When you’re investigating a case, as far
                                 as actions of a defendant, or potential
                                 defendant, are you trained to look at certain
                                 aspects of their behavior to make
                                 determinations?
      A.                         Yes, sir, I am.
      Q.                         Okay. And what kind of training do you
                                 have—or what kind of behavior are you
                                 specifically looking for?
      A.                         Throughout your career as a police officer anytime
                                 you’re always looking for different type behaviors that
                                 indicate deception such as people giving qualifying
                                 statements, people being extremely nervous, and that
                                 sort of thing.
      Q.                         Okay. Well, I mean, you make me nervous
                                 every time you walk in the office. What’s the
                                 difference between my nervousness per se or
                                 the nervousness of somebody who has
                                 potential issues?
      A.                         Well, in general, you can have a general
                                 conversation. Like how a person enters a
                                 room in the beginning we kind of talk about
                                 normal everyday things and kind of calm their
                                 fears and let them know that you’re there to
                                 find the truth and so forth. Most of the time, if
                                 people aren’t trying to be deceptive with you, they’ll
                                 calm down and just have a normal conversation.




                                           22
Q.                   Okay. And are there any other red flags or
                     potential issues you may be looking at when
                     you’re viewing, or observing, potential
                     defendants?

A.                   Other than the statements and . . . you ask
                     them different details. If there’s something they
                     want to talk about, they’ll give a lot of details to you.
                     If it’s something they don’t want to talk about, they’ll
                     give very short answers and so forth.

Q.                   Now, as a peace officer, as a Texas Ranger,
                     you have to form opinions; is that correct?
A.                   That’s true, I do.
Q.                   Is that part of your normal investigation
                     mode?
A.                   Yes, sir, it is.
Q.                   Okay. What if you were not allowed to have
                     opinions?
A.                   Then there wouldn’t be a whole lot of reason
                     to be out there doing what I do.
Q.                   Okay. So what we’re going to talk about is
                     your opinions of [Appellant] while you’re
                     observing him in the interview room. Okay?
A.                   Okay.
Q.                   You talked earlier about behaviors, deceptive
                     behaviors. Were you able to identify any deceptive
                     behaviors in just his actions that caused you to have
                     concerns about his truthfulness?
[Defense Counsel]:   Objection, Your Honor. We’re not psychologists here.
                     I think he’s getting into the psychology of it.




                                23
[Prosecutor]:          Your Honor, I prefaced this. I asked for his
                       opinions. He’s entitled under Rule 702 to
                       give his law enforcement opinion.
[Defense Counsel]:     And I will stipulate the law enforcement is
                       always going to believe the client is being
                       deceptive.
[Prosecutor]:          That’s not a proper stipulation.
THE COURT:             Overruled.
THE WITNESS:           Now, what was the question?
Q. (BY [Prosecutor])   Well, did you see any behaviors that, in your
                       opinion, were deceptive?
A.                     Yes, I did. Obviously the statements, qualifying
                       statements, that he only inserted—when we were
                       asking him details about the potential crime, he was
                       able to give a lot of details about some things in the
                       general questioning and the events leading up to come
                       into the interview room, but, when we asked details
                       about exactly what happened, he was very short and
                       didn’t want to talk about that much, which is natural.
....
Q.                     Is there any deceptive behavior as far as details in one
                       subject matter and then lack of detail in another
                       subject matter that you recall?
A.                     That’s what I was recalling. As far as he just said he
                       just took a pe[e]k. You know, we really had to drag
                       it out or ask more details about exactly how he took a
                       pe[e]k and how he released the panties and so forth
                       like that, whereas when we were talking about the
                       number of milligrams of Valium and so forth he gave
                       several details.
Q.                     Okay. And so those are your opinions based
                       on your observation. . . .



                                 24
[Emphasis added.] Appellant argues that the questions asked of Ranger Schraub and

his answers

      were, if anything, more problematic [than Investigator Reeves’s]. Ranger
      Schraub was presented as an expert who had been trained to identify
      “deceptive behaviors” in suspects. In his case, over objection, he was
      allowed to identify deceptive behaviors he observed from [Appellant]
      which included, first and foremost, [Appellant’s] “qualifying statements”
      denying the offense.

However, by Appellant’s own admission in his brief, Appellant’s objection—“We’re

not psychologists here. I think he’s getting into the psychology of it”—concerned

Ranger Schraub’s lack of training and qualifications to offer opinions about

Appellant’s deceptive behavior. Appellant’s complaint on appeal is that a witness,

whether an expert or a lay witness, cannot opine on a witness’s or a party’s credibility.

The argument on appeal therefore does not comport with the trial objection. See

Clark, 365 S.W.3d at 339; Lovill, 319 S.W.3d at 691–92; Pena, 285 S.W.3d at 464;

Stevens v. State, No. 02-10-00139-CR, 2011 WL 5119572, at *5 (Tex. App.—Fort

Worth Oct. 27, 2011, no pet.) (per curiam) (mem. op., not designated for publication).

Additionally, Appellant did not object to the specific example of duplicity Ranger

Schraub gave regarding Appellant’s brief statements about “taking a pe[e]k” and

letting go of Jane’s panties versus the many details Appellant gave about his Valium

usage. Thus, Appellant forfeited any error. See Geuder, 115 S.W.3d at 13; Leday,

983 S.W.2d at 718. Even if Appellant’s objection had preserved error, the later,




                                           25
unobjected-to admission of the same or similar evidence rendered any error harmless.

See Valle, 109 S.W.3d at 509; Anderson, 717 S.W.2d at 628.

      Having held that Appellant forfeited all complaints raised in his second issue,

we overrule it.

      C.     We Do Not Perform a Harm Analysis of Unpreserved Error.

      In his third issue, Appellant contends that the trial court’s allowing Investigator

Reeves and Ranger Schraub to opine about Jane’s credibility and Appellant’s guilt was

harmful. See Tex. R. App. P. 44.2(b). We have held that Appellant forfeited his

complaints about the admissibility of their testimony. We therefore also overrule

Appellant’s third issue. See Harris v. State, 364 S.W.3d 328, 340 (Tex. App.—Houston

[1st Dist.] 2012, no pet.); cf. Vasquez v. State, 501 S.W.3d 691, 706 (Tex. App.—

Houston [14th Dist.] 2016, pet. ref’d) (“Because no error was preserved between

either of [defendant’s] complaints, Rule 44.2 is not triggered. We therefore decline

[defendant’s] invitation to perform a harm analysis for constitutional error.”).

                                   CONCLUSION

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




                                           26
                                /s/ Mark T. Pittman
                                Mark T. Pittman
                                Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: July 25, 2019




                           27
