                            NUMBER 13-10-00535-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

PAUL PAWLAK,                                                               Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 347th District Court
                         of Nueces County, Texas.


                       MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Perkes
               Memorandum Opinion by Justice Benavides
      A Nueces County jury convicted appellant Paul Pawlak of three counts of sexual

assault of a child, a second-degree felony, see TEX. PENAL CODE ANN. § 22.011(a)(2)

(West 2011); one count of sexual assault, a second-degree felony, see id. §

22.011(a)(1); and one count of attempted sexual assault, a third-degree felony. See id.;
id. § 15.01 (West 2011).                The trial court sentenced Pawlak to fifteen years’

imprisonment for one count of sexual assault of a child; twenty years’ imprisonment each

for the remaining counts of sexual assault of a child and one count of sexual assault; and

eight years’ imprisonment for the attempted sexual assault charge.

      By three issues, Pawlak appeals his conviction and contends that (1) the trial

court erred in admitting extrinsic evidence of child pornography during the

guilt-innocence phase of Pawlak’s trial; (2) the trial court erred in denying Pawlak’s

motion for directed verdict for counts related to complainants M.R. and R.O.1; and (3) the

trial court erred in allowing the State’s witnesses testify as to the truthfulness of the

complainants. We affirm.

                                         I.       BACKGROUND

      Pawlak was indicted by a Nueces County grand jury in August 2010 on five

counts of sexual assault of a child, two counts of attempted sexual assault, and one

count of sexual assault.           These charges involved complaints made by five males

regarding incidents that occurred from 1994 until 2008.

A.    The State’s Case-in-Chief

      1. Complainant R.O.2

      R.O. testified that in July 2008, Pawlak approached him in a small pickup outside

a Corpus Christi taco shop. Pawlak offered to pay R.O. money to perform yard work

around Pawlak’s home.           R.O., who was fifteen years old at the time, agreed to perform

the yard work and left the restaurant in the pickup bound for Pawlak’s home.             R.O.

      1
          We will utilize aliases to protect the identities of the complainants.
      2
          R.O.’s outcry relates to Counts 1–4 of Pawlak’s indictment.


                                                       2
testified that after R.O. finished the yard work, Pawlak invited him inside the house.

       R.O. testified that Pawlak then asked him if he wanted to take a shower, and R.O.

agreed.     After the shower, Pawlak provided R.O. with a pair of shorts to wear.                    Pawlak

then offered R.O. a coconut-flavored drink in a bottle with two lizards on the label. After

taking the drink, R.O. testified that he ingested “six or seven” “Z-bars”3 provided by

Pawlak.      At this point, R.O. sat on Pawlak’s couch when Pawlak asked him if he had

shaved his legs or any other part of his body.              The next thing R.O. remembered was

that Pawlak began to put his hand up R.O.’s shorts through one of the leg openings.

Initially, R.O. testified that Pawlak touched his “private parts” with his hand, but could not

remember if Pawlak made oral contact with his penis, or vice versa.                        However, on

recall, R.O. testified that Pawlak did in fact make oral contact with his penis, but he did

not tell the jury about it during his prior testimony because he was embarrassed.                      R.O.

also did not remember whether Pawlak touched his anus with Pawlak’s penis, but only

remembered that he felt pain.

       Testimony was also elicited from R.O.’s mother. R.O.’s mother testified that on

the night of July 16, 2008, she remembered that R.O. arrived home close to midnight or

1 a.m.—at least two hours past his curfew—and was dropped off by an unknown male

later identified as Pawlak.           R.O.’s mother stated that R.O. entered their home,

immediately fell to the floor, and vomited a white substance.              She also testified that R.O.

then stated that “he” raped [R.O.].           R.O.’s mother called the police and requested an

ambulance.        The ambulance arrived and transported R.O. to Driscoll Children’s

Hospital.


       3
           “Z-bars” are described as the street-name for the anti-anxiety prescription drug Xanax.

                                                     3
      At Driscoll Children’s Hospital, R.O. was evaluated by a certified sexual assault

nurse examiner (SANE) Sonja Eddleman. R.O.’s medical record was admitted into

evidence over Pawlak’s objection. In part, the record states the following narrative

history from R.O.:

      I was laying on the couch and he started rubbing my legs. Then he
      reached up inside my shorts and was grabbing my [testicles]. I told him to
      stop. He said, no I’m not going to stop. He started to put his finger in my
      butt hole. He sucked my [penis]. Then he put his [penis] in my mouth. He
      turned me over and put his [penis] in my butt hole.

Eddleman described R.O. as a “good historian,” who was tearful “at times when relating

the history.” Eddleman also testified that R.O.’s laboratory tests tested positive for

marihuana as well as a group of benzodiazepine, specifically Lorazepam, which is the

family name of the prescription drug Xanax.              Eddleman testified that she could not

pinpoint the exact amount of the drug that R.O. ingested, but only that his body

contained “a high dosage of the drug.” R.O.’s t-shirt was also tested for DNA.            Lab

results indicated that the t-shirt contained semen stains from an unknown male source.4

      Corpus Christi Police Detective Sergio Ramirez testified that he investigated

R.O.’s mother’s preliminary sexual assault of a child complaint filed against Pawlak.

After some initial non-cooperation from R.O. and his family, Detective Ramirez

interviewed R.O., and R.O. identified Pawlak as his abuser. Pawlak was arrested and

local media published his photo.         Detective Ramirez testified that after Pawlak’s photo

was released, other individuals came forward and made outcries about Pawlak.



      4
          According to lab results, the semen did not match R.O. or Pawlak’s DNA.


                                                   4
      2. Complainant N.G.5

      N.G., who was nineteen at the time of trial, testified that he first met Pawlak five or

six years prior when N.G. was jogging down Alameda Street in Corpus Christi, Texas.

According to N.G., Pawlak approached him and asked if he wanted to earn some money

working for Pawlak. N.G. agreed and helped Pawlak set up some props for Pawlak’s

event decoration business.         In July 2008, N.G. was seventeen and performed work for

Pawlak and came back to Pawlak’s home, drank alcohol, and took “some pills” provided

by Pawlak.      N.G. stated that he could not move after taking the pills and remembered

that Pawlak tried to straddle him as he sat on the couch.             N.G. pushed Pawlak away,

the two got into a fight, and N.G. left Pawlak’s home.               N.G. stated that despite this

incident, he continued to work for Pawlak.           N.G. testified that another incident occurred

at Pawlak’s house when N.G. was drunk and “got drugged up.” The next thing N.G.

testified to remembering was waking up naked in Pawlak’s bedroom and Pawlak

molesting him.       N.G. remembered waking up face down on the bed with Pawlak

penetrating his anus with Pawlak’s penis.                N.G. stated that he was in a state of

“semi-consciousness” where he “knew what was going on,” but could not move.

      N.G. made his outcry to police while incarcerated with the Texas Youth

Commission in Hidalgo County, after his stepmother notified him of the pending charges

against Pawlak.

      3. Complainant J.P.6

      J.P. testified that the first and only time he met Pawlak was on a summer night in


      5
          N.G.’s outcry relates to Count 5 of Pawlak’s indictment.
      6
          J.P.’s outcry relates to Count 6 of Pawlak’s indictment.


                                                    5
2002, when he was sixteen years old.                 According to J.P., Pawlak approached him in a

small pickup to hand him a church flyer while he used a payphone outside of a Times

Market.     Pawlak offered J.P. a ride, which he accepted, and then offered J.P. a drink,

which he also accepted.             J.P. described the beverage as a “gristly” coconut-flavored

SoBe brand drink with a lizard on the label. J.P. remembered entering Pawlak’s house,

using the restroom, then waking up on his stomach on top of a bed.                       J.P. testified that

Pawlak was on top of him and penetrating his anus with Pawlak’s penis. J.P. testified

that at that point he felt drowsy and could not function. Pawlak later dropped him off at

the Times Market where the two had met earlier that day.

       4. Complainant M.R.7

       M.R. testified that he was seventeen years old when he first met Pawlak as he

walked to a bus stop in Nueces County.                   Pawlak approached M.R. to talk about God

and Christianity and handed M.R. a Christian flyer. Pawlak offered M.R. a ride, which

he accepted, and then offered M.R. a beverage, and he accepted.                           M.R. stated that

after driving around, they ended up at Pawlak’s house.                    M.R. described the beverage as

a coconut-flavored drink with a green lizard on the bottle.                  M.R. then testified that he sat

on Pawlak’s couch and blacked out. The next thing that M.R. remembered was waking

up at his cousin’s house with a busted nose and chin, without money, and hurting from

his rectum. 8      M.R. stated that he did not seek medical attention because he was

humiliated.       M.R. testified, however, that he does not remember being sexually

assaulted.

       7
           M.R.’s outcry relates to Count 7 of Pawlak’s indictment.
       8
           M.R. testified that it “definitely felt like” his rectum was penetrated.


                                                         6
      5. Complainant D.O.9

      D.O. met Pawlak during the 1990s through church.               D.O. testified that he helped

Pawlak with home improvements throughout the summer. D.O. remembered a road

trip from Corpus Christi to Harlingen in the summer of 1994 that he took with Pawlak

when he was sixteen. D.O. testified that Pawlak stopped for beer on the way back to

Corpus Christi and D.O. drank “about five beers,” and returned to Pawlak’s house.

D.O. stated that he remembered waking up the next morning, unclothed on part of his

body, in Pawlak’s bed.         He testified that he did not remember much from the night

before, felt sick from drinking so much, and was not hurting on any part of his body.

      The trial court granted Pawlak’s motion for directed verdict on D.O.’s count of the

indictment because the statute of limitations period had run on that count.

B.    The Defense

      The defense presented three character witnesses, including J.H., who lived with

Pawlak during his childhood and testified that Pawlak never abused him.

C.    The Verdict

      The jury found Pawlak guilty of (1) two counts of sexual assault of a child based

on R.O.’s allegations; (2) one count of sexual assault based on N.G.’s allegations; (3)

one count of sexual assault of a child based on J.P.’s allegations; and (4) one count of

attempted sexual assault based on M.R.’s allegations. This appeal followed.

                                II. ADMISSION OF PHOTOGRAPHS

          By his first issue, Pawlak contends that the trial court abused its discretion when

it admitted hundreds of digital images of gay pornography seized from Pawlak’s home


      9
          D.O.’s outcry relates to Count 8 of Pawlak’s indictment.

                                                    7
computer—including some which depicted children—over his objections under rules of

evidence 404(b) and 403.      See TEX. R. EVID. 403; 404(b). At the time of trial, Pawlak

faced a separate indictment for possession of child pornography.

A.       Standard of Review

         A ruling on whether extraneous-offense evidence is admissible is a question for

the trial court.   See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). A

trial court’s ruling on the admissibility of extraneous offenses is reviewed under an abuse

of discretion standard.    De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App.

2009).      So long as the trial court’s ruling is within the “zone of reasonable

disagreement,” no abuse of discretion exists and the ruling will be upheld.        Id.; see

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en banc).           A trial

court’s ruling is usually within this zone if it shows that the extraneous evidence is

relevant to a material, non-propensity issue and the probative value of that evidence is

not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury.    See De La Paz, 279 S.W.3d at 344.

B.       Discussion

         1. Rule 404(b)

         Pawlak argues that the trial court abused its discretion by admitting the digital

images because the State’s sole argument in support of the admissibility of these

photographs was to show that Pawlak was a bad person; and therefore, capable of

committing the crimes charged. We disagree.

         Generally, for evidence to be admissible, it must be relevant.   See TEX. R. EVID.

402. Extraneous evidence of other crimes, wrongs, or acts is not admissible to prove


                                             8
character of a person in order to show action in conformity therewith.    Id. at R. 404(b).

However, extraneous-offense evidence may be admissible for other purposes such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake.   Id. Another permissible purpose to admit extraneous-offense evidence is to

rebut a defensive theory.   See Montgomery, 105 S.W.3d at 626.

       At trial, the State’s main argument to support its offer of the photographs was in

response to the following examination of defense witness, Carrie Pennel.              The

photographs were offered and admitted after the following colloquy:

       DEFENSE COUNSEL:            You’re aware, though, that there are very
                                   serious allegations made against [Pawlak]?

       PENNEL:                     I am.

       DEFENSE COUNSEL:            And you know what those allegations are?

       PENNEL:                     I know that—what the news said, and I know
                                   what Paul has said to me about pornography
                                   and about drugging and raping young boys.
                                   I’m sorry, I don’t believe that.

       DEFENSE COUNSEL:            Okay.

       PENNEL:                     I don’t—I’ve never seen anything violent
                                   or—I’ve never seen anything, to me, that would
                                   make me think that Paul could violate a child or
                                   an adult. He’s very passive, freaky, fabulous
                                   guy.

       The trial court agreed with the State’s argument that defense counsel had opened

the door to the child pornography charge by eliciting Pennel’s testimony and allowed the

introduction of evidence.

       Evidence that is otherwise inadmissible may become admissible when a party

opens the door to such evidence.     Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim.


                                            9
App. 2009) (holding that “a party opens the door by leaving a false impression with the

jury that invites the other side to respond”); see Renteria v. State, 206 S.W.3d 689, 697

(Tex. Crim. App. 2006). Here, the trial court agreed with the State’s contention that

Pennel’s testimony opened the door to the pornography because the defense elicited

testimony about Pennel’s opinion as to whether Pawlak could have committed the

charges complained of and as a result, left a false impression with the jury.

Accordingly, the trial court’s ruling under rule 404(b) was within the zone of reasonable

disagreement.

         2. Rule 403

         However, despite the fact that a party may open the door to rebuttal evidence, the

trial court has the discretion to exclude the evidence under rule of evidence 403.                       See

Hayden, 296 S.W.3d at 554; Martinez v. State, 17 S.W.3d 677, 687 (Tex. Crim. App.

2000).        Pawlak argues further that even if photos were relevant, the trial court

nonetheless abused its discretion by admitting them over his rule 403 objection that the

probative value of the photographs were substantially outweighed by the danger of unfair

prejudice.10 See TEX. R. EVID. 403.

         A court may consider many factors in determining whether the probative value of

photographs is substantially outweighed by the danger of unfair prejudice, including:

(1) the number of exhibits offered; (2) their gruesomeness; (3) their detail; (4) their size;

(5) whether they are in color or in black and white; (6) whether they are close up; (7)

whether the body depicted is clothed or naked; (8) the availability of other means of

         10
           This Court ordered the trial court reporter to supplement the record in this case to include the two
original compact discs (Exhibits 19 and 20) admitted at trial, which contain the photographs at issue.
Therefore, the State’s argument that Pawlak waived error for failing to request a complete record on appeal
is overruled. See TEX. R. APP. P. 34.6(d).

                                                     10
proof; and (9) and other circumstances unique to the individual case.          See Davis v.

State, 313 S.W.3d 317, 331 (Tex. Crim. App. 2010). The admissibility of photographs

over an objection is within the sound discretion of the trial court.   Id.

       The photos in this case were numerous, in color, and depicted young males of

unknown ages engaged in various sex acts.         The State’s primary purpose for its offer

was to rebut Pawlak’s defense theories that Pawlak was incapable of committing the

charges for which he stood accused.        Our review of the record shows that while the

images were graphic, the State did not spend an excessive amount of time on this

evidence, and the images were no more heinous than the testimony elicited of the

complainants.    See generally Jones v. State, 119 S.W.3d 412, 422–23 (Tex. App.—Fort

Worth 2003, no pet.). Therefore, we hold that the trial court’s ruling, under rule 403 and

Davis, was within the zone of reasonable disagreement and not an abuse of discretion.

       3. Waiver

       Finally, Pawlak argues that the trial court improperly admitted the photographs

prior to the testimony of the State’s sponsoring witness; and also that the trial court failed

to instruct the jury that extraneous evidence can be considered only for a limited

purpose.   See Jackson v. State, 320 S.W.3d 873, 887 (Tex. App.—Texarkana 2010,

pet. ref'd). As a general prerequisite to presenting a complaint for appellate review, the

record must show that (1) the complaint was made to the trial court by a timely request,

objection, or motion that states the grounds for the ruling sought with enough specificity

to make the trial court aware of the complaint and complied with the rules; and (2) that

the trial court ruled expressly or implicitly on the request, objection, or motion or refused

to rule. See TEX. R. APP. P. 33.1(a). Our review of the record does not show that


                                             11
Pawlak objected to the trial court’s admission prior to the sponsoring witness’s

testimony, nor does it show that Pawlak requested the trial court to consider the

photographs for the limited purpose of rebutting a defensive theory.    Because Pawlak

did not object or make a request to the trial court on these arguments and receive a

ruling, these issues are not properly preserved for appellate review.       See id.; see

Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002).

         Accordingly, we overrule Pawlak’s first issue.

                              III. SUFFICIENCY CHALLENGE

         In his second issue, Pawlak contends that the trial court erred in denying his

motion for directed verdict regarding counts related to complainants M.R. and R.O.

A.       Standard of Review

         In sufficiency challenges, we must apply the Jackson v. Virginia, 443 U.S. 307,

319, (1979), standard to determine whether the evidence is sufficient to support each

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

doubt.    See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.)

(holding that the Jackson standard of review is the “only standard” that should be applied

in a sufficiency review). Under Jackson, this Court must consider the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.      Id.

         Our analysis measures the elements of the offense as defined by a hypothetically

correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009)

(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


                                             12
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, 286 S.W.3d at 327.            We must defer to the jury's

determinations of credibility and weight of the evidence because the jurors are the sole

fact-finders. See Brooks, 323 S.W.3d at 899; see also TEX. CODE CRIM. PROC. ANN. art.

38.04 (West 1979) (“The jury, in all cases, is the exclusive judge of the facts proved, and

of the weight to be given to the testimony . . . .”).

B.      Discussion

        1. Sufficiency of M.R.’s Complaint

        The State indicted Pawlak for one count of attempted sexual assault of M.R.

Under a hypothetically correct jury charge, Pawlak is guilty of attempted sexual assault if:

(1) with specific intent to commit sexual assault, (2) Pawlak does an act:                        to wit,

unzipping M.R.’s pants and fondling M.R.; (3) amounting to more than mere preparation

that tends but fails to effect the commission of the offense intended.                See TEX. PENAL

CODE ANN. § 15.01; id. § 22.011.11

        Pawlak argues that the State presented no evidence in support of the allegations

in the indictment, and Pawlak specifically cites M.R.’s testimony for support.                      M.R.

testified that when he was seventeen he was with Pawlak, inside Pawlak’s home.

Pawlak offered him a coconut-flavored drink, and he blacked out. M.R. testified that he

later woke up at his cousin’s house and his rectum hurt. M.R. testified that he called

        11
           A person commits sexual assault if the actor: (1) intentionally or knowingly; (2) causes the
penetration of the anus or sexual organ of another person by any means, without that person's consent; (3)
causes the penetration of the mouth of another person by the sexual organ of the actor, without that
person's consent; or (4) causes the sexual organ of another person, without that person's consent, to
contact or penetrate the mouth, anus, or sexual organ of another person, including the actor. See TEX.
PENAL CODE ANN. § 22.011.


                                                   13
police after watching the initial report on Pawlak’s arrest to report Pawlak’s previous

sexual assault against him.              M.R. later notified Pawlak about what he told police, and

Pawlak did not deny doing anything to him.

         Before we delve into the sufficiency of this count, we note that a variance exists

between Pawlak’s indictment on this count and the evidence put forth at trial. 12 See

Byrd v. State, 336 S.W.3d 242, 247 (Tex. Crim. App. 2011) (defining a “variance” as a

discrepancy between the allegations in the indictment and the proof offered at trial).

Such variances may be held to be immaterial—that is, little mistakes which do not

prejudice a defendant’s substantial rights such as failure to give the defendant notice of

the crime charged or the defendant’s risk of being prosecuted at a later date for the same

crime.        Here, the variance dealt with the manner in which Pawlak allegedly carried out

his attempted sexual assault of M.R.—that is, by unzipping M.R.’s pants and fondling

him.     We conclude that this variance is immaterial, and we will disregard it in our

sufficiency review.          See Byrd, 336 S.W.3d at 248; Gollihar v. State, 46 S.W.3d 243, 256

(Tex. Crim. App. 2001).

         Here, the evidence shows that M.R. testified that Pawlak sexually assaulted him.

Further, when M.R. later confronted Pawlak about going to the police, Pawlak did not

deny that allegation. This evidence suggests that Pawlak not only attempted to commit

sexual assault, but did in fact complete it.               See TEX. PENAL CODE ANN. § 22.011; Diaz v.

State, 491 S.W.2d 166, 167 (Tex. Crim. App. 1973) (holding that “if the offense charged

is an attempt to commit an act and the proof shows the completed act such will not

defeat the conviction”); Flores v. State, 472 S.W.2d 146, 148 (Tex. Crim. App. 1971)


         12
              At trial, this fact was admitted to by the State.

                                                          14
(holding that a defendant may not complain on appeal when the evidence showed him

guilty of a greater offense).      Moreover, Pawlak’s failure to deny that he sexually

assaulted M.R. when confronted by M.R. provides evidence of an adoptive admission of

the crime.   See Tucker v. State, 771 S.W.2d 523, 535–36 (Tex. Crim. App. 1988)

(recognizing the theory of “adoptive admissions”). Accordingly, viewing the evidence in

a light most favorable to the verdict, we conclude that the jury was rationally justified in

finding Pawlak guilty beyond on reasonable doubt on this count.

       2. Sufficiency of R.O.’s Complaint

       The State indicted Pawlak for two counts of sexual assault of R.O., a child, by

penetrating R.O.’s anus with (1) Pawlak’s finger; and (2) Pawlak’s penis.          Under a

hypothetical jury charge, Pawlak is guilty of sexual assault of R.O. if he (1) intentionally

or knowingly; (2) causes the penetration of R.O.’s anus; (3) with Pawlak’s finger (count

2) and Pawlak’s penis (count 3).    See TEX. PENAL CODE ANN. § 22.011(2)(A).

       Pawlak argues that the evidence does not support the conviction because the

State’s proof relies heavily on the SANE medical report, which was admitted over

Pawlak’s rule 403 objection and quotes R.O. as stating that Pawlak “put his finger in my

butt hole” and “put his [penis] in my butt hole.” The evidence also shows, however, that

R.O. told his mother that he was raped the night Pawlak dropped him off and that he was

sexually assaulted. The State also introduced a photo lineup in which R.O. identifies

Pawlak as his abuser.     R.O. also testified that he woke up feeling “disgusted down

there” and that his “back side” was in pain. R.O. admitted on the witness stand that he

was embarrassed about what Pawlak did to him and that it was difficult for him to tell

strangers about it.   Moreover, R.O. testified that he did not remember much of what he


                                            15
told people following the alleged incident.             This conflict in R.O.’s testimony was a

question for the jury to resolve.       See Brooks, 323 S.W.3d at 899. The jury was within

its province to weigh the medical report heavier than R.O.’s live testimony to the

contrary, particularly in light of R.O. testifying to very embarrassing and personal events

in open court.       See id.   Accordingly, viewing the evidence in a light most favorable to

the verdict, we conclude that the jury was rationally justified in finding Pawlak guilty

beyond on reasonable doubt on these two counts.

                               IV. STATE’S EXPERT WITNESSES

         In his final issue, Pawlak asserts that the trial court abused its discretion in

allowing the State’s expert witnesses to testify as to the truthfulness of the complainants’

testimony.13

A.       Standard of Review & Applicable Law

         Trial courts have “great discretion in determining whether a witness possesses

sufficient qualifications to assist the jury as an expert on a specific topic in a particular

case.”        Rodgers v. State, 205 S.W.3d 525, 528 (Tex. Crim. App. 2006); see TEX. R.

EVID. 702. Therefore, we review a trial court’s decision to admit or exclude scientific

expert testimony under an abuse of discretion standard.                   See Sexton v. State, 93

S.W.3d 96, 99 (Tex. Crim. App. 2002). With regard to admissibility of expert witness

testimony, the Texas Court of Criminal Appeals decided that:

         The use of expert testimony must be limited to situations in which the
         expert's knowledge and experience on a relevant issue are beyond that of
         an average juror. The decision to be made remains with the jury, but the
         13
             The State argues in its brief that Pawlak did not properly preserve this issue for appeal. We
disagree. First, Pawlak’s counsel properly raised an objection under rule 702, which was overruled by the
trial court prior to Paula Rosenstein’s testimony. Second, Pawlak objected to a line of questioning asked
by the State regarding matters beyond Ricardo Jimenez’s expertise. That objection was also overruled.
Accordingly, we will address the merits of Pawlak’s issue.

                                                   16
       testimonial expertise is allowed to enable the trier of fact to better
       comprehend the full significance of the evidence. The evidence at issue is
       admissible if it encompasses or “embraces” an ultimate fact; it may
       not decide that fact for the jury.

Duckett v. State, 797 S.W.2d 906, 914 (Tex. Crim. App. 1990). Furthermore, expert

witnesses in child sexual abuse cases may hold specialized knowledge concerning

sexually abused children, but they may not possess such specialized knowledge beyond

the realm of the jury regarding the truthfulness of the children.   See Yount v. State, 872

S.W.2d 706, 708 (Tex. Crim. App. 1993) (en banc) (adopting one commentator’s position

that “experts on child sexual abuse are not human lie detectors.              Nor are they

clairvoyant.   Nothing in the literature suggests that experts can or should replace the

jury as the ultimate arbiters of credibility”).

B.     Discussion

       Here, Pawlak argues that the State’s experts—Ricardo Jimenez, a program

director and lead forensic interviewer at the Children’s Advocacy Center, and Paula

Rosenstein, a therapist who treats sexually abused children—were improperly allowed to

testify about the complainants’ truthfulness. We disagree.

       Jimenez testified that children typically disclose abuse by “incremental disclosure”

and that at times, they might shut down and not tell anymore after telling a little bit.

Jimenez also testified that it is more difficult for male interviewees to disclose details of

abuse due to:       (1) social pressures that they put on themselves; (2) feelings of

weakness; and (3) questions about their sexuality.

       Rosenstein testified about a concept called “grooming” in which a sex offender

takes the child victim into a situation where the child knows that they need to keep things

a secret.   She also testified that some children hold back details and delay outcry while

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others make immediate outcries after abuse.        Finally, Rosenstein also testified to

symptoms experienced by child sex abuse victims.

       Neither Jimenez nor Rosenstein’s testimony suggested that the complainants’

allegations were truthful nor did Jimenez and Rosensten attempt to act as human lie

detectors. Rather, both experts’ testimony dealt with general behavioral characteristics

and traits shown by sexually abused children.     See Cueva v. State, 339 S.W.3d 839,

867 (Tex. App.—Corpus Christi 2011, pet. ref'd). Accordingly, the trial court did not

abuse its discretion in allowing the State to elicit testimony on these matters from these

witnesses.   See      Rodgers, 205 S.W.3d at 528. Pawlak’s final issue is overruled.

                                    V. CONCLUSION

       The trial court’s judgment is affirmed.


                                                       __________________________
                                                       GINA M. BENAVIDES,
                                                       Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
23rd day of August, 2012.




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