Opinion issued May 29, 2014.




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-13-00628-CR
                          ———————————
            JAVIER ARMANDO SOSA–MEDRANO, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 182nd District Court
                          Harris County, Texas
                      Trial Court Case No. 1386421



                        MEMORANDUM OPINION

     A jury convicted Javier Armando Sosa–Medrano of indecency with a child.

The trial court assessed his punishment at five years’ confinement. On appeal,
Sosa–Medrano contends that he was deprived of constitutionally effective

assistance of counsel at trial because trial counsel failed to challenge the admission

of the testimony of one of the State’s witnesses. We conclude that Sosa–Medrano

has failed to make the required showing that his trial counsel’s representation was

deficient; we therefore affirm.

                                    Background

      In May 2010, Sosa–Medrano and his wife drove Erica Saldivar, his cousin’s

wife, and her three children to a doctor’s office for an appointment. Before their

arrival, J.S., Saldivar’s four–year–old son, complained that he did not want to go to

the doctor. Sosa–Medrano and his wife offered to take care of J.S. at their house

while Saldivar and her other two children attended the appointment. Saldivar left

J.S. in their care. After the appointment, Sosa–Medrano returned with J.S. to the

doctor’s office to drive Saldivar and her children to their home. After Saldivar and

her children arrived home, she began to cook in the kitchen. In the kitchen, J.S.

told Saldivar that Sosa–Medrano had touched J.S.’s bottom with his mouth. The

following month, J.S. participated in an interview with Tasha James, a forensic

interviewer at the Harris County Children’s Assessment Center, to discuss the

alleged sexual abuse.




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      Course of proceedings

      At trial, James testified that J.S. competently answered age–appropriate

questions about the alleged sexual abuse. Sosa–Medrano’s counsel failed to object

to this testimony.

                                   Discussion

      To prevail on a claim of ineffective assistance of counsel, the defendant

must show that (1) his counsel’s performance was deficient and (2) a reasonable

probability exists that the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The first prong of

this test requires the defendant to show that counsel’s performance fell below an

objective standard of reasonableness, in that counsel made such serious errors he

was not functioning effectively as counsel. Strickland, 466 U.S. at 687, 104 S. Ct.

at 2064; Thompson, 9 S.W.3d at 812. Thus, the defendant must prove objectively,

by a preponderance of the evidence, that his counsel’s representation fell below

professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App.

2002).

      The second prong requires the defendant to show a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; see also

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Thompson, 9 S.W.3d at 812. In reviewing counsel’s performance, we look to the

totality of the representation to determine the effectiveness of counsel, indulging a

strong presumption that the attorney’s performance falls within the wide range of

reasonable professional assistance or trial strategy. Thompson, 9 S.W.3d at 813.

      The record must firmly support a claim of ineffective assistance. Id. The

record on direct appeal is usually not sufficient to show that counsel’s

representation was so deficient and so lacking in tactical or strategic decision

making as to overcome the presumption that counsel’s conduct was reasonable and

professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

      Sosa–Medrano contends that his trial counsel was ineffective because he

failed to object to James’s expert testimony that J.S. had competently answered

age–appropriate questions during the interview.

      Exclusion of evidence

      Under Texas Rule of Evidence 702, an expert may not proffer an opinion as

to the veracity of a particular witness, or class of persons to whom the witness

belongs. Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993). An opinion

about another’s truthfulness does more than “‘assist the trier of fact to understand

the evidence or to determine a fact in issue’; it decides an issue for the jury.” Id. at

709 (emphasis omitted); Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d). The jury alone is to decide whether a


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particular witness’s testimony is credible. See Yount, 872 S.W.2d at 710–11.

James gave the following testimony:

      State’s counsel: Do you have any guidelines for age–appropriate interview
      questions that you ask?

      James: We do. . . . [H]e was able to tell me who, what, and where it had
      happened.

      State’s counsel: . . . Was he able to answer . . . age–appropriate interview
      questions that you would expect a four to five–year–old to answer?

      James: Yes.

      “[T]here is a ‘fine but essential’ line between helpful expert testimony and

impermissible comments on credibility.” Schutz v. State, 957 S.W.2d 52, 60 (Tex.

Crim. App. 1997) (quoting State v. Myers, 382 N.W.2d 91, 98 (Iowa 1986)). For

instance, an expert witness’s testimony that, in her opinion, the child does not

exhibit indications of coaching does not constitute an opinion on the child’s

ultimate truthfulness. See id. at 73; Reynolds v. State, 227 S.W.3d 355, 366 (Tex.

App.—Texarkana 2007, no pet.); Burns v. State, 122 S.W.3d 434, 437 (Tex.

App—Houston [1st Dist.] 2003, pet. ref’d) (expert’s testimony regarding

psychological test results, which suggested victim answered questions in open,

non–defensive, and truthful manner, did not constitute impermissible comment on

victim’s truthfulness). Similarly, here, James’s testimony that J.S. competently

answered age–appropriate questions does not directly comment on J.S.’s

truthfulness.
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      Sosa–Medrano relies on Miller v. State, 757 S.W.2d 880 (Tex. App.—Dallas

1988, pet. ref’d). Sosa–Medrano’s reliance, however, is misplaced. In Miller, a

witness directly opined that the complainant had been sexually abused and that she

was “particularly adroit” in discovering “what the truth is.” Id. at 883. In contrast,

James testified that J.S. competently answered age–appropriate questions, but not

whether those answers were truthful.

      Sosa–Medrano also challenges James’s testimony on the general interview

techniques she employs, such as asking non–leading questions, asking children to

explain the difference between the truth and a lie, and recording the interview for

subsequent peer review. But this testimony also does not directly comment on

J.S.’s credibility.   See Reynolds, 227 S.W.3d at 366 (holding that testimony

“explaining how [witness] interviews children and the steps taken to ask

nonleading questions” does not constitute opinion on complainant’s credibility).

We hold that the absence of an objection by Sosa–Medrano’s trial counsel to

James’s admissible testimony does not show that trial counsel’s representation fell

below an objective standard of reasonableness. See Strickland, 466 U.S. at 687,

104 S. Ct. at 2064.




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                                    Conclusion

      Sosa–Medrano has not borne his burden to rebut the presumption that trial

counsel made all significant decisions in the exercise of reasonable professional

judgment. We therefore affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Jennings, Bland, and Massengale.

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




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