                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00165-CR



               JUAN TREVINO, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 421st District Court
               Caldwell County, Texas
                Trial Court No. 14-027




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                       MEMORANDUM OPINION
           Layla1 was six years old at the time her father, Juan Trevino, Jr., was tried and convicted

in Caldwell County2 of three counts of aggravated sexual assault of a child and one count of

indecency with a child by contact all involving Layla as the victim. The investigation leading to

Trevino’s charges began after Layla exhibited many behavioral problems in pre-kindergarten,

when she was about four years old.

           Layla had issues, and there was evidence that those issues persisted. Her teacher for the

first part of her pre-kindergarten year described Layla as a “handful as far as discipline” and added

that she would not listen or mind instructions and that she would be mean to and hurt other

children. Then, Layla did not show empathy, but rather laughed and saw nothing wrong with

having hurt the other child.

           On appeal, Trevino complains of improper witness examination by the State and jury-

charge error. We affirm the trial court’s judgments and sentences because we find that (1) Trevino

was not harmed by the State’s improper questioning of a witness and (2) Trevino was not harmed

by the inclusion in the jury charge of definitions of “female sexual organ” and “penetration.”

           Before we discuss the issues, further factual context is needed.




1
    We refer to the child complainant with a pseudonym. See TEX. R. APP. P. 9.10.
2
 Originally appealed to the Third Court of Appeals, this case was transferred to this Court by the Texas Supreme Court
pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware of
any conflict between precedent of the Third Court of Appeals and that of this Court on any relevant issue. See TEX.
R. APP. P. 41.3.



                                                           2
       Layla’s mother, Virginia, testified that, when Layla first started school, she behaved well.

According to Virginia, Layla had minor attitude issues but nothing like the behavior issues

described by witnesses.

       The following year, Layla was placed in a different school, and Virginia said Layla’s

behavior “improved.” However, Layla’s kindergarten teacher, Vanessa Valdez—presumably her

teacher at the new school, as this would follow the pre-kindergarten acts described by most of the

witnesses—said Layla “had a lot of behavior problems,” “had a hard time controlling her

emotions,” and “would retaliate by hitting other students [and] physically throwing objects that

were nearby.” Valdez added, “And she wasn’t like this just to the other students. She was like

this to teachers as well.” Valdez also said Layla frequently had urinary accidents, sometimes many

times a day. In Valdez’ opinion, this was not common for a kindergarten student. This continued

throughout Layla’s kindergarten year (with a brief respite of about one month after the Christmas

break). Valdez said she tried to contact Virginia “numerous times,” but never received a response.

       School nurse, Shanna Guenther, testified that, on December 19, 2013, Layla came to the

nurse’s office after having wet her clothes. As she had done many times before, Guenther helped

Layla remove her soiled clothes and sent her to the restroom to put on clean clothes Layla had

brought with her. By the time Layla emerged, though, she had already wet herself again.

Guenther, concerned the child might have a urinary tract infection or be in pain, asked Layla,

“[Layla], what’s up?” and whether the child was feeling burning or pain. Layla said, “It hurt where

[her] daddy had put things and touched her at night when he laid down with her.” Guenther

notified the assistant principal and Child Protective Services (CPS), as well as the police.

                                                 3
            Later that day, Layla was taken to Sexual Assault Nurse Examiner (SANE) Noella Hill,

who examined Layla. Hill testified that she was alone with Layla and that the little girl told her “a

boy” had touched her, then said the boy was Trevino.3 According to Hill, Layla said that

            [Trevino] had taken a bath or [Layla] was taking a bath at her house and that he
            placed a towel over her leg and then placed his fingers in her private[,] which she
            described as her private. . . . She said his “wee wee[,]” which would have been his
            penis[,] was placed in her private and her butt and then also in her mouth. And that
            she -- she tasted some medicine that came out of his wee wee.

Hill used a diagram4 with Layla to identify body parts; Hill said Layla told her her father “had

kissed her chichis[,] which her chichis were her breast area on the diagram[,] and that it hurt her.”

Layla also told Hill “her mom had hurt her chichis also,” “her mom had put her finger in her bottom

and that it hurt,” and “her mom would hit her with a belt.”5 Hill also described a “notch” on

Layla’s hymen, which Hill interpreted as an indication of physical trauma. She explained that, if

the hymen “gets broken or let’s just say torn, it tries to heal itself back. And so as it heals back

that’s actually what it leaves is a little notch sometimes.”                      This notch, testified Hill, was

“consistent” with the allegations of abuse Layla had made to the nurse. On cross-examination,

though, Trevino pointed out that the expert, whose article Hill relied on to reach that conclusion,

had subsequently authored another article documenting cases in which non-abused prepubescent

girls’ hymens had similar notches. Hill acknowledged, on reviewing this later document, the



3
 On cross-examination, Hill described Layla’s statements as “She said a boy touched me. And then further said he
has black hair. My dad touched me. His name is Juan.”
4
 The diagram includes a handwritten note, “(Patient circled the places on the body where she was touched).” The
bottom, vagina, chest/breast, and face areas were circled on the diagram.
5
    There is no indication in the record whether these allegations were investigated or pursued.
                                                             4
expert author’s opinion that hymen notches such as the one found on Layla were not determinative

of sexual abuse or trauma. On re-direct examination, Hill said the newer article did not change

her earlier opinion.

       After this examination, CPS Investigator Cammi McCormick arranged for Layla, Layla’s

three siblings, and their mother to stay at a women’s shelter that night. McCormick advised

Trevino to have no contact with Layla and to find somewhere else to stay. To this point,

McCormick said Virginia was cooperative with the unfolding investigation. The next day, forensic

interviews were scheduled for Layla and her three siblings. In her interview, Layla said no one

had looked at or touched her “butt” or her private area. When forensic interviewer Vanessa Paulini

asked Layla whether anyone had told her what to say in the interview, Layla said, “[Y]es,” but

then asked Paulini if she was a doctor. Later, according to Paulini, Layla claimed that no one had

told her what to say. Paulini said that, in her experience, children would deny or recant prior

allegations of abuse if a parent had indicated they did not believe the child’s accusation. We

discuss below evidence suggesting that Virginia did not believe Layla’s allegations, or may not

have been supportive of prosecuting Trevino. Paulini also described Layla as “distant,” as tending

to avoid answering questions, and as covering her face at times. In Paulini’s opinion, this was not

normal for a child of Layla’s age.

       Melissa Rodriquez, who ran the women’s shelter where the family stayed the night of the

initial outcry, claimed to have significant experience as a forensic interviewer of child sexual

assault victims. Rodriquez told the jury that, when a child of Layla’s age demonstrates violent

behavior toward others or regresses to incontinence after potty training, such conduct may be

                                                5
symptomatic of sexual abuse. Nurse Practitioner Amanda Hodge worked at a urologist office to

which Layla and her mother were referred after the outcries to Guenther and Hill. Hodge testified

that incontinence in a child of Layla’s age was not uncommon and that, based on the history

provided, Layla had never been completely continent since potty training. Hodge also said that

child sexual abuse has been reported to be a cause for enuresis and that Layla’s urinalysis was

normal. Dr. Rebecca Kim, Layla’s pediatrician since 2012 (approximately a year before the

allegations), testified that she had not seen Layla for specific urinary problems in the fall of 2013,

shortly before Layla made the statement to Guenther that started the investigation. This seems to

contradict testimony from Guenther and Luna that Layla’s mother told them Layla had been seen

specifically for the constant enuresis.

       There was also much testimony that Layla had a problem with truth-telling. Interning for

her school psychology degree, Jolene Ellis worked with Layla and testified that Layla lied from

time to time, but that she also told Ellis when she was lying. One teacher reported that Layla

claimed she or other teachers had physically harmed her, but these allegations were found to be

“observably untrue.” One pre-kindergarten teacher described a time when she was chasing Layla,

who frequently “tr[ied] to escape, run down halls, [and] out the door,” and Layla accused the

teacher of choking her, despite the fact that the teacher’s hands were nowhere near the child’s

neck. Another time, after the teacher rubbed Layla’s back to induce her to sleep, but put her hands

nowhere near Layla’s throat, Layla accused the teacher of choking her. An aide to the teacher

once reported Layla saying that the aide had hit Layla, when she had not. Ellis said it became her

practice to only meet with or counsel Layla when others were around and doors were open. Layla

                                                  6
told forensic interviewer Paulini that she “likes to lie [and] that she lies to everybody because she

wants to.”

       Trevino presented testimony from a forensic psychologist, Michael Gottlieb, who testified

that children of four years “or less really are not able to distinguish fantasy from reality.” Gottlieb

had not met Layla or any of the other witnesses. He generally suggested that Layla’s behavior

may have stemmed from neglectful parenting by Virginia, pointing to testimony about Virginia’s

failure to diligently follow through with treatment directions for the enuresis. Gottlieb found it

significant that Layla’s acting out and behavior problems predated her allegations of sexual assault.

He acknowledged that neither sexual abuse, nor “many other reasons,” could be ruled out as

precipitating factors in Layla’s behavior.

       Virginia testified, variously, that Trevino had never been alone with Layla, that Trevino

was “usually” with Virginia, or “always” with Virginia. According to Virginia, Trevino had never

even changed Layla’s diapers. She claimed pediatrician Kim told her Layla’s urination accidents

were “just a phase” that would “go away.” Virginia acknowledged having been notified by Layla’s

teachers that Layla had problems, like kicking others, being rebellious, and experiencing

incontinence. According to Virginia, when Trevino was jailed, Layla was so upset that she did not

want to go to school, and teachers or the principal would have to pull a screaming Layla away

from Virginia. Virginia said she believed that Layla was afraid of the teachers and school nurse;

that, a few months after Layla’s outcries of abuse, Virginia had Layla moved to a different

teacher’s class; and that Layla had told her mother that the first teacher “was mean to her and that

she wouldn’t let her go to the restroom.” Virginia testified that, when she asked Layla if “daddy

                                                  7
had done anything to her,” Layla “said no.” Virginia took Layla to visit Trevino in jail at least

once.

        Layla testified, but did not repeat any allegations. She said one pre-kindergarten teacher,

Ms. Knapp, was mean to her, and the other, Ms. Luna, would not let her go to the restroom when

she needed. Layla said she did not remember speaking to school nurse Guenther in December

2013, but that, shortly thereafter, she remembered going to a hospital but did not remember

meeting SANE Hill. She did say she remembered someone at the hospital making sure she was

ok, but denied, or did not remember, telling that person anything. She also remembered staying at

the shelter that night. She remembered seeing Paulini, the forensic interviewer, but said she had

not said anything to her and did not know why she had been to see Paulini. Layla admitted to

telling lies, but claimed that she always told the other person that she was lying. The prosecutor

tried to ask again about her statements to Guenther, asking Layla, “[I]f you told Mrs. Guenther

something, would that have been right or would that have been wrong?” Layla answered, “That

would be wrong.” When asked if she told Guenther “something wrong,” Layla shook her head

side to side. When the State asked again if Layla remembered talking to a doctor or nurse at the

hospital, Layla said, “Yes.” But Layla did not want to talk about that conversation. At that point,

Layla put her head down in her arms and, shortly before that, had apparently put her hand in front

of her face. When asked why she did not want to recount her conversation at the hospital, she

twice shrugged her shoulders and twice said, “I don’t know.” At any rate, the jurors were present

and were able to evaluate whether they believed Layla’s behavior on the stand indicated trauma



                                                 8
from testifying or from her prior experiences. See Marshall v. State, 479 S.W.3d 840, 845 (Tex.

Crim. App. 2016); Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997).

(1)        Trevino Was Not Harmed by the State’s Improper Questioning of a Witness

           Trevino complains that the State was allowed to improperly question Virginia. The

challenged questions all referenced earlier testimony from Layla’s pre-kindergarten teacher,

Stephanie Luna, contrasting Virginia’s testimony with Luna’s testimony. It is improper for a party

to question a witness about the veracity of another witness’ testimony. See Ex parte McFarland,

163 S.W.3d 743, 755 n.37 (Tex. Crim. App. 2005) (“[T]he rules of evidence prevent an attorney

from impeaching one witness’ testimony with the testimony of other witnesses.”). Although the

questions posed to Virginia were improper, we conclude that they, and her answers, were harmless.

           To address these issues, we provide excerpts from the questions and answers at issue, with

Trevino’s complained-of questions highlighted in bold print. The State asked if Virginia would

be surprised “if Ms. Luna testified that [Eric6] never had any of the problems that [Layla] had?”

Virginia answered, “Well, [Eric] urinates in the bed at night. So Mrs. Luna is not there.” The

State then asked, “Oh okay. So Ms. Luna’s obviously not telling us the truth?” The highlighted

question is the subject of Trevino’s first complaint.7 Virginia did not answer, the court recessed

proceedings for lunch, and the State did not pursue this line of questioning after lunch.




6
    A pseudonym for Layla’s brother.
7
 Trevino’s trial objection was that this question was argumentative; we will assume, for the sake of argument and the
interest of justice, that this preserved error.

                                                         9
         A little later, Virginia testified that she asked for Layla to be removed from class, because

Layla told Virginia that Luna “was mean to her” and “wouldn’t let her go to the restroom” and that

Luna thought Layla was lying. The State asked, “So if Ms. Luna has testified that the reason that

you requested for [Layla] to be moved was due to the fact that you were telling [Layla] that the

reason her dad was incarcerated was because of Ms. Luna?” Virginia denied this, and the State

asked, “Who would be telling the truth at that point?” After Trevino’s objection was overruled,

the State again asked, “Who would be telling the truth then?” Virginia answered, “Well, I know

that I’m not lying about -- I don’t have anything against anybody at the school. My problem is my

daughter. If my daughter’s being uncomfortable in the class, I feel that I’m her mother and I need

to intervene.” The State then said it did not believe she had answered its question and asked, “I

said who would be lying?” Virginia replied, “Well, I don’t know.”8

         Later, after explaining why she asked for Layla to be removed from Luna’s classroom and

describing Luna’s statements that she did not believe Layla needed to go to, or was actually going

to, the bathroom when she asked, the State asked, “And if Ms. Luna testifies to something different

would she be telling the truth in that testimony?” At this point, after the trial court overruled

Trevino’s objection and denied his request for a running objection, the State again asked who

would be “telling the truth in that circumstance,” and Trevino did not object. Essentially, this last

question was the same as the others to which Trevino did object.




8
 The objection here was “to the term lying,” but again, we feel the subject of Trevino’s complaint was apparent to the
court from the context, and we will entertain the point of error.
                                                         10
        The State does not suggest that these questions were proper, but, instead, urges us to find

them harmless.9 We find no harm in the highlighted questions to Virginia or in her answers in

response. The State was contrasting Virginia’s version of events with those presented by another

witness. “[W]hen the appellant said that the officer was lying, he was merely saying that his

version of the affair was correct and that of the officer incorrect. We see nothing in such answer

which would tend to bring him into disrepute with the jury.” Creech v. State, 329 S.W.2d 290,

291 (Tex. Crim. App. 1959). There had been evidence adduced that Virginia may have disbelieved

Layla’s accusations or failed to support the child in those accusations. Forensic interviewer Paulini

testified that a subsequent recantation of allegations was “usually because there’s a non-supportive

parent.”10 The nurse practitioner at the urologist’s office said Virginia did not follow the medical

instructions such as ensuring regular bathroom trips and administering laxatives to Layla. CPS

Investigator McCormick testified that, in the weeks after the initial outcry and investigation,

Virginia became “defensive” regarding the allegations after having been “upset and cooperative”

when the allegations were first made known to her. Detective Bell also said Virginia was initially

cooperative when he spoke with her after the SANE examination and the forensic interview, but

in the weeks following, “the interaction changed completely,” and Virginia was “not . . .

cooperative at all.”




9
 “While the questions [to the defendant whether other witnesses were lying where their description of events was
different from defendant’s] may have been argumentative, we do not perceive reversible error in light of the entire
record.” McKinney v. State, 491 S.W.2d 404, 408 (Tex. Crim. App. 1973).
10
  Rodriguez testified similarly that a recantation may be a symptom of a non-supportive parent, but this was in voir
dire, outside the jury’s presence.
                                                        11
            Virginia, although called as a State’s witness, did not seem entirely convinced of the truth

of Layla’s accusations. As discussed in both Creech and Ayala v. State, 352 S.W.2d 955, 956

(Tex. Crim. App. 1962),11 the differences in witnesses’ perceptions or recollections of events are

for the jury to weigh and resolve. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013)

(“The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses.”).

We find any error in the State’s questions harmless beyond a reasonable doubt.12

(2)         Trevino Was Not Harmed by the Inclusion in the Jury Charge of Definitions of “Female
            Sexual Organ” and “Penetration”

            Trevino also argues that the trial court reversibly erred by including, in the jury charge,

definitions of “penetration” and “female sexual organ.” “As a general matter, definitions for terms

that are not statutorily defined are not considered to be the ‘applicable law’[13] under [Texas Code

of Criminal Procedure] Article 36.14, and it is thus generally impermissible for the trial court to

define those terms in the jury instructions.” Green v. State, 476 S.W.3d 440, 445 (Tex. Crim. App.

2015).14 Including the definitions was error.


11
  Three officers testified that they stopped Ayala’s vehicle and that Ayala was unsteady on his feet, was incoherent in
his speech, and smelled strongly of intoxicants. Ayala and his wife testified he had not been drinking the day of the
stop. Because “[t]here was a sharp conflict in the testimony with reference to the odor of alcohol on appellant’s
breath,” “under the conflicting testimony, Ayala’s testimony “could not . . . have injured him before the jury.” Ayala,
352 S.W.2d at 956.
12
 Without expressly stating it, all the opinions we have found addressing this matter treat it as non-constitutional error,
and that is how Trevino presents his argument. See TEX. R. APP. P. 44.2(b); see also Streff v. State, 890 S.W.2d 815,
820–21 (Tex. App.—Eastland 1994, pet. ref’d).

 The term “applicable law” references “the law applicable to the case” required by statute. See TEX. CODE CRIM.
13

PROC. ANN. art. 36.14 (West 2007).
14
     That said,

            an exception to that general rule exists for “terms which have a known and established legal
            meaning, or which have acquired a peculiar and appropriate meaning in the law, as where the words
                                                           12
        Where we have found error in the trial court’s jury charge, we next “evaluate whether

sufficient harm resulted from the error to require reversal.” Wilson v. State, 391 S.W.3d 131, 138

(Tex. App.—Texarkana 2012, no pet.) Where, as here, the defendant objected to the erroneous

part of the charge, he must demonstrate only that he suffered some harm to obtain a reversal.

Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). While this harm must be “actual,

rather than theoretical,” “the presence of any harm, regardless of degree, which results from

preserved charging error, is sufficient to require a reversal of the conviction.” Id. It is the

appellant’s burden to “persuade the reviewing court that he suffered some actual harm as a

consequence of the charging error. If he is unable to do so, the error will not result in a reversal

of his conviction.” LaPoint v. State, 750 S.W.2d 180, 191 (Tex. Crim. App. 1986) (op. on reh’g).

The effect of the error must be considered “in light of the entire jury charge, the state of the

evidence, including the contested issues and the weight of probative evidence, the arguments of

counsel and any other relevant information revealed by the record of the trial as a whole.” Sanchez

v. State, 376 S.W.3d 767, 774–75 (Tex. Crim. App. 2012) (quoting Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985)).

        Jury Charge. Other than the improper definitions, the charge as a whole was a correct

rendering of applicable law. The court’s definition of penetration was very brief: “penetration of




        used have a well-known common law meaning.” Kirsch [v. State], 357 S.W.3d [645,] 650 (quoting
        Medford [v. State], 13 S.W.3d [769,] 772). Such terms are “considered as having been used in their
        technical sense,” and, therefore, it is not error for the trial court to include in its instructions “a
        precise, uniform definition” to guide the jury’s deliberations. Medford, 13 S.W.3d at 772.

Green, 476 S.W.3d at 445.

                                                         13
any degree.”15 The definition of female sexual organ accurately described the subject. The charge

instructed that “female sexual organ” “means and includes the vulva or tissue surrounding the

vagina and the vagina and the female genitalia or any parts between the labia of the female

genitalia.”16 As in Green, we find the court’s definitions were “‘mild [and] neutral,’ describe[d]

‘an obvious[,] common-sense proposition,’ and thus . . . would not have impinged on the jury’s

fact-finding authority.” Green, 476 S.W.3d at 447 (quoting Brown v. State, 122 S.W.3d 794, 803

(Tex. Crim. App. 2003)).

            Also as in Green, Trevino’s defensive theory focused on attacking Layla’s credibility. In

this case, and in Green, penetration of the female sexual organ was a central issue for the jury’s

consideration. Neither of the definitions focused the jury’s attention “on a particular type of

evidence.” See id.

            The totality of the record shows that the jury’s focus would have been on this
            element of the offense regardless of the inclusion of the definitions, which were
            accurate under the law and did not function to draw additional or undue attention
            to any particular evidence that might weigh in favor of or against a finding of guilt.

Id. at 447–48.

            The charge, considered as a whole, weighs against a finding of harm.


15
     Contrast this with the definition of penetration given in Green:

            [P]enetration occurs so long as contact with the female sexual organ could reasonably be regarded
            by ordinary English speakers as more intrusive than contact with the outer vaginal lips and is
            complete, however slight, if any. Touching beneath the fold of the external genitalia amounts to
            penetration within the meaning of the aggravated sexual assault statute.

Id. at 446–47.
16
  Green’s proposed charge defined the female sexual organ as the entire female genitalia, including both vagina and
the vulva. Vulva is defined as the external parts of the female sexual organs, including the labia majora, the labia
minora, mons veneris, clitoris, perineum, and the vestibule or entrance to the vagina. Id. at 447.
                                                             14
        Closing Arguments.      The State made no reference to the definitions in its closing

arguments. Rather, it stressed Layla’s believability, how difficult it had been for the six-year-old

to testify in open court about the alleged abuse, and the lack of support from her mother, who

seemed not to believe the accusations, or at least preferred to ignore them. Trevino’s closing

argument likewise did not address the definitions, but attacked Layla’s credibility and that of the

SANE.

        Our consideration of the closing arguments leads us to conclude that they weigh against a

finding of harm.

        The Evidence. The case was tried on whether Trevino sexually contacted Layla. There

was no argument over the parts of the body involved or any line drawing regarding whether

penetration occurred. As in Green, “the central dispute at trial was as to the complainant’s

credibility in asserting that appellant had sexually touched her at all, as opposed to a factual dispute

as to the type or degree of touching alleged by the complainant.” Id. at 451. Admittedly, Layla

did not repeat the descriptions of abuse she made to Guenther and Hill. But those women did

testify to statements Layla made to them, and that testimony was sufficient to support the jury’s

belief of the indictment’s allegations. The State’s case also pointed to several instances suggesting

the child’s mother did not support the allegations. Layla made her statements to Guenther and Hill

on the same day. Virginia was with Layla that night in a shelter. The next day, Layla declined to

make any accusations in a forensic interview, and it appears she never repeated the allegations.

The jury saw all the witnesses, including Layla, in what was clearly a very uncomfortable situation



                                                  15
for the young girl. The jury made the credibility determinations regarding Guenther, Hill, Virginia,

Layla, and the rest of the witnesses.

       We find this factor weighs against a showing of harm. Trevino has not established that he

suffered any harm as a result of the erroneous jury charge.

       We affirm the trial court’s judgment.



                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:        February 10, 2016
Date Decided:          May 25, 2016

Do Not Publish




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