                                     NO. 07-10-0318-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL D

                                      APRIL 21, 2011


                                     RENE L. FRANCO,

                                                                     Appellant
                                              v.

                                  THE STATE OF TEXAS,

                                                                     Appellee
                            ___________________________

              FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;

               NO. 5920; HONORABLE KELLY G. MOORE, PRESIDING


                                          Opinion


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       Rene L. Franco challenges his conviction of sexual assault of a child by

contending 1) the evidence is legally insufficient to support it, and 2) the trial court erred

in admitting evidence that improperly bolstered the complainant’s purported

truthfulness. We affirm the judgment.

       Sufficiency of the Evidence

       We review the sufficiency of the evidence under the standard discussed in

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Brooks v.
State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). Next, appellant was charged with

intentionally and knowingly causing the penetration of the sexual organ of his niece (by

marriage), who was under seventeen years of age, by his sexual organ. See TEX.

PENAL CODE ANN. §22.011(a)(2) (Vernon Supp. 2010).                          At trial, the complainant

testified that appellant raped her by putting his penis inside her vaginal area when she

stayed the night at the home of her aunt and uncle. She did not report the attack until a

month later when she was being disciplined for allowing a boy to enter her bedroom at

night for the purpose of having sex. The evidence allegedly is insufficient to prove guilt

because it consists of “a string of misleading facts and inconsistent testimony from the

complainant.” We overrule the issue.

        The testimony of the complainant alone, if believed by the jury, is sufficient to

support the conviction. TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (Vernon 2005);

Perez v. State, 113 S.W.3d 819, 838 (Tex. App.–Austin 2003, pet. ref’d), overruled in

part on other grounds by Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008);

Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d).

Any inconsistencies in the evidence were for the jury to resolve, as were issues

regarding the credibility of the complainant and the other witnesses, and we are

required to defer to its determination on those issues.1 Brooks v. State, 323 S.W.3d at

902 n.19.



        1
          Appellant particularly points to 1) testimony from a police officer that the complainant told him
she screamed at the time of the assault although she denied at trial that she had done so, 2) the fact that
the complainant told her parents of the assault only after they were outraged over her behavior with a
boy, 3) the use of “penal code” language by the complainant in describing the assault, and 4) the failure
of police or the complainant’s parents to seek a medical exam.

                                                    2
       Admission of Evidence

       Appellant next complains about the admission into evidence of testimony from

the complainant’s mother regarding the truthfulness of her daughter’s allegations.2 We

overrule the issue.

       Appellant objected below to the utterance on the basis that it constituted a

“conclusion.” Now, he suggests that it was inadmissible as an attempt to impermissibly

bolster the credibility of the complainant in violation of Texas Rule of Evidence 701. It is

true that an attempt to bolster the veracity of a complaining witness generally is

prohibited because the testimony is not helpful to the jury and, therefore, lacks

relevance. Arzaga v. State, 86 S.W.3d 767, 776 (Tex. App.–El Paso 2002, no pet.).

That is, it tends to usurp the resolution of an issue which only a jury can resolve. Id.

(stating that such evidence is inadmissible because it impermissibly decides an issue

for the jury); accord, Reynolds v. State, 227 S.W.3d 355, 365-66 (Tex. App.–Texarkana

2007, no pet.) (stating the same). Yet, complaining about evidence on this basis is

quite different from complaining about it because certain testimony is a conclusion.

Conclusions may encompass most anything, such as conclusions of law, conclusions of

fact, and observations lacking factual support or explanation. So too may conclusions

be quite relevant, though inadmissible for other reasons. Given this, we must conclude

that the objection asserted below fails to comport with that proffered on appeal.

Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (stating that the


       2
         The State asked the witness: “Do you believe your daughter when she told you what [appellant]
did to her?” The witness answered: “Yes.”

                                                  3
complaint on appeal must comport with that made at trial). Uttering “conclusion” without

more is not enough to reasonably inform the trial court that the testimony may violate

Texas Rule of Evidence 701 (involving opinions given by lay witnesses) or constitute

impermissible bolstering. Consequently, the complaint before us was not preserved

below. See Arzaga v. State, 86 S.W.3d at 776 n.1 (stating that while a “bolstering

objection” preserves the complaint for review, the better practice is to object because

the testimony lacks relevance or constitutes improper opinion testimony).

      Accordingly, the judgment is affirmed.



                                               Brian Quinn
                                               Chief Justice

Publish.




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