AFFIRM; and Opinion Filed February 19, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-13-00088-CR
                                     No. 05-13-00089-CR

                        EDUARDO ENRIQUE ALFARO, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 401st Judicial District Court
                                   Collin County, Texas
                Trial Court Cause Nos. 401-82025-2011 and 401-82026-2011

                            MEMORANDUM OPINION
                          Before Justices FitzGerald, Lang, and Lewis
                                   Opinion by Justice Lewis
       Appellant Eduardo Enrique Alfaro was charged in two separate causes with continuous

sexual abuse of a child, aggravated sexual assault of a child, sexual assault of a child, and

indecency with a child. Appellant pleaded not guilty and a jury found him guilty as charged. In

cause no. 401-82025-2011, the trial court assessed punishment at fifty years imprisonment on the

offense of continuous sexual abuse of a child, and forty years imprisonment on the offense of

aggravated sexual assault of a child. In cause no. 401-82026-2011, the trial court assessed

punishment at forty years imprisonment on the offense of sexual assault of a child, and twenty

years imprisonment on the offense of indecency with a child. The trial court ordered that the

sentences run concurrently. In two issues on appeal, appellant contends the trial court erred in

denying his objections to improper expert testimony and improper bolstering testimony.
         The background of the case and the evidence are well known to the parties, and we

therefore limit recitation of the facts. Because all dispositive issues are settled in law, we issue

this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the judgments of the trial

court.

                                    STANDARD OF REVIEW

         We review a trial court’s decision to admit or exclude expert testimony for an abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Weatherred v. State,

15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court abuses its discretion if it acts without

reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.

Crim. App. 1990). A trial court does not abuse its discretion if its decision is within the zone of

reasonable disagreement. Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008); Sexton

v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002).

                                      EXPERT TESTIMONY

         In his first issue, appellant argues the trial court erred in overruling his objection to the

expert testimony of Lisa Martinez as improper testimony concerning the truthfulness of a class of

people. In determining whether expert testimony should be admitted, the trial court is guided by

Rule 702 of the Texas Rules of Evidence. TEX. R. EVID. 702. Expert testimony is admissible if

it assists “the trier of fact to understand the evidence or to determine a fact in issue.” Id.

However, expert testimony does not assist the jury if it constitutes “a direct opinion on the

truthfulness” of a child victim’s allegations. Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim.

App. 1993) (testimony regarding an opinion of 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). An

expert may testify that the witness exhibits symptoms consistent with sexual abuse, but not that a

witness is truthful. Cohn v. State, 849 S.W.2d 817, 818–19 (Tex. Crim. App. 1993).

                                                 –2–
       After complainant’s outcry, her mother took her to the police. Complainant was then

interviewed by Martinez, a forensic interviewer for Children’s Advocacy Center of Collin

County (CAC). At trial, Martinez described the forensic interview process utilized at CAC to

interview victims.   Martinez also testified regarding general characteristics associated with

victims, including reasons why it is so difficult for some victims to make an outcry, and why

some victims wait so long to make an outcry.          Appellant complains about the following

testimony:

       State:         I want to talk to you about a number of things that you talked
                      about. You said that sometimes you feel guiltier and guiltier
                      because you didn’t tell. Why is that?

       Martinez:      Well, at first sometimes kids don’t realize - - if they’re pretty
                      young kids they don’t realize what they did was wrong, or they
                      don’t real [sic] what the perpetrator was doing is wrong. It’s just
                      something - -

       Defense:       Your Honor, I’m going to have to object to speculation.           She
                      doesn’t know what kids realize.

       State:         I think she does.

       Court:         Yeah, overruled, counsel.

       Martinez:      So sometimes they just don’t realize what they do is wrong
                      because they’re so young. And when you have a parent figure
                      doing something that’s not okay to them, it kind of skews their
                      view because they don’t know what’s right and what’s wrong.
                      What you learn as an adult of what’s normal and what’s not normal
                      is a lot of times what you learn as a parent. Especially in Hispanic
                      households, you know, we are taught you listen to your parents no
                      matter what. You listen to adults. You respect adults. What they
                      say goes. So if this adult is doing these things to you that feel kind
                      of weird or you don’t know, you know, head or tails about it, a lot
                      of the times they’re not going to tell right away. After that when
                      you realize that they’re not telling either or that it might be wrong
                      or something, it gets kind of harder and harder to tell as time goes
                      on, because you should have told at the beginning and then you
                      start feeling more of the shame and guilt and that it’s your fault.




                                               –3–
       State:         In your experience with the interviews that you’ve conducted, do
                      you find that it’s harder for children who waited, who didn’t tell
                      right away?

       Martinez:      Yes.

       Defense:       Objection. I’d like to object under Rule 702. We’re talking about
                      classes of people. In 1500 people she’s interviewed children will
                      sometimes do this. Under Rule 702 there’s case law that says that
                      that kind of testimony will not assist the trier of fact to come up
                      with a solution, and it’s excludable under Rule 702 and we would
                      object to that, Judge. Anything talking about classes of people or
                      generalities where she’s actually testifying that ultimately are
                      going to make more specific testimony.

       Court:         Y’all approach, counsel.

       (At the Bench, on the record)

       Court:         Let me see what you’ve got because unfortunately I only have an
                      ’09 book.

       Defense:       Judge, this is a head note but it basically says an expert who
                      testifies that a class of persons to which the victim belongs is
                      truthful is essentially telling the jury that they can believe the
                      victim in the incident case as well. Yount v. State, 872 S.W.2d 706
                      pretty much indicated that’s not expert testimony.

       State:         I don’t recall asking her if the victim’s truthful. I didn’t ask if the
                      victim’s been truthful. I didn’t intend to ask that either.

       Defense:       I’m fearful, Judge, that we’re crossing a line. What will happen is
                      we’re establishing testimony about classes of people. Young
                      children can do this. Young children can do that. And then we’re
                      going to get more specific and then that is when that class
                      testimony comes in and helps a jury to form an opinion that she’s
                      an expert.

       State:         The key word in that is truthful, and I’m not going to ask her if she
                      believes a child’s been truthful.

       Court:         I’m going to overrule the objection, counsel, based on the question
                      I heard. Go ahead, counsel.

On appeal, appellant contends that Martinez’s testimony was an inadmissible opinion on the

truthfulness of the complainant. Appellant argues that by testifying that Hispanic children would

                                               –4–
naturally be submissive to a parental figure, Martinez was implicitly testifying that

complainant’s delayed outcry was truthful. Appellant asserts that “in effect, Martinez testified

that the complainant’s delayed outcry could be believed because she was a Hispanic child.”

       The State responds that appellant’s first issue is not properly before this Court because

appellant did not make a timely trial objection. The State points out that appellant waited until

the next question was asked and answered before making an objection. Citing Dinkins v. State

and Girndt v. State, the State argues that appellant’s objection was untimely and error was

waived.   See Dinkins v. State, 894 S.W.2d 330, 354–55 (Tex. Crim. App. 1995) (“If [a

defendant] fails to object until after an objectionable question has been asked and answered, and

he can show no legitimate reason to justify the delay, his objection is untimely and error is

waived.”); Girndt v. State, 623 S.W.2d 930, 934–35 (Tex. Crim. App. 1981) (“The well

established law of this State has long been that after a question is asked and answered by a

witness without objection, with no claim that there was any misunderstanding, or without any

reason shown for not objecting before the answer was given, the refusal of the trial court to

withdraw the answer from the jury or instruct the jury not to consider the answer is not error.”).

       Appellant contends his trial counsel waited to object until Martinez offered her

“inadmissible conclusion” in response to the next question. Citing Acevedo v. State, Appellant

argues that an objection to an expert’s testimony lodged after that expert’s testimony “solidified”

is sufficient to properly preserve error for appeal. See Acevedo v. State, 255 S.W.3d 162, 167–69

(Tex. App.—San Antonio 2008, pet. ref’d). However, Acevedo is distinguishable from the case

before this Court. In Acevedo, the defendant objected to the reliability of the expert’s testimony

in its entirety after cross-examination revealed that the expert had no underlying facts and data to

support his testimony. See id. at 168. Because this complete absence of underlying facts and

data was only made known during cross-examination, the Acevedo Court concluded that an

                                                –5–
objection following cross-examination was timely. Id. Here, however, appellant is not objecting

to all of Martinez’s testimony; he is objecting to one specific statement in Martinez’s lengthy

testimony.

       To preserve a complaint for appellate review, a specific and timely request, objection, or

motion must be made to the trial court. TEX. R. APP. P. 33.1(a); see Lackey v. State, 364 S.W.3d

837, 843 (Tex. Crim. App. 2012); Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008).

The objection is timely only if the party makes the objection as soon as the grounds for it become

apparent. Lackey, 364 S.W.3d at 843. “Typically this means ‘as soon as the [objecting party]

knows or should know that an error has occurred.’” Id. (quoting Hollins v. State, 805 S.W.2d

475, 476 (Tex. Crim. App. 1991)). In his appellate brief, appellant clarifies that he specifically

objects to Martinez’s statement “[e]specially in Hispanic households, you know, we are taught

you listen to your parents no matter what” as being testimony that complainant’s delayed outcry

could be believed because she was a Hispanic child. However, during trial, appellant’s trial

counsel did not object during or at the conclusion of Martinez’s statement about Hispanic

households. Instead, the record reflects that Martinez’s testimony continued for five more

sentences. The State then asked Martinez another question, without an objection from defense

counsel, and Martinez answered. Only after Martinez completed her answer to the second

question did appellant’s trial counsel object to Martinez’s testimony as being testimony that

would not assist the trier of fact under rule 702. We conclude appellant’s objection was not

timely. Lackey, 364 S.W.3d at 843.

       Even if defense counsel had timely objected to Martinez’s statement regarding Hispanic

households, the trial court did not abuse its discretion in overruling the objection. Appellant

relies on Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993) and Wilson v. State, 90 S.W.3d

391 (Tex. App.—Dallas 2002, no pet.) to support his argument that Martinez’s statement about

                                               –6–
Hispanic households was a comment on the complainant’s truthfulness. However, in both the

Yount and Wilson cases, the State attempted to elicit specific expert testimony that child victims

as a class rarely lie about being sexually assaulted. See Yount, 872 S.W.2d at 707–08; Wilson, 90

S.W.3d at 393.     The reviewing courts concluded such expert testimony did not aid, but

supplanted, the jury in its decision on whether the child complainant was credible. See Yount,

872 S.W.2d at 711–12; Wilson, 90 S.W.3d at 393. In the case before this Court, appellant

concedes Martinez never specifically said the word “truthful.” Indeed, the record reflects the

State did not ask, and Martinez did not testify, if she thought the complainant, or the class of

Hispanic children, was truthful. Testimony that Hispanic children are taught to listen to their

parents is not equivalent to opinion testimony stating that because the child complainant was

Hispanic, she was telling the truth. Expert testimony that provides useful information to aid the

jury in evaluating the testimony of another witness is admissible. Burke v. State, 371 S.W.3d

252, 259 (Tex. App.—Houston [1st Dist.] 2011, pet. dism’d); Bryant v. State, 340 S.W.3d 1, 11

(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). We conclude the trial court did not abuse its

discretion when it overruled appellant’s objection. We overrule appellant’s first issue.

                                         BOLSTERING

       In his second issue, appellant complains that the trial court erred in overruling his

objection that testimony by Dr. Kathleen Lang was improper bolstering. Lang is a medical

doctor who works at the REACH Clinic at Children’s Medical Center in Dallas, Texas. The

REACH Clinic performs sexual assault forensic exams when a child is referred to the clinic with

a recent disclosure of sexual abuse. Lang testified that a verbal history is obtained from the

parents or the child. According to Lang, the child is then given a regular physical exam and a

genital exam. Lang testified that the verbal history dictates what types of testing the clinic will

do, i.e., testing for sexually transmitted diseases. Lang then testified, without objection, that the

                                                –7–
complainant was given a medical exam and a genital exam. Appellant initially asserts Lang’s

testimony that a genital exam was necessary is improper bolstering. However, the record clearly

reflects that at trial, defense counsel did not object to this portion of Lang’s testimony. Later in

his brief, appellant contends Lang’s testimony that additional testing was necessary based on

complainant’s verbal history improperly bolstered complainant’s credibility. According to the

record, the trial court sustained defense counsel’s hearsay objection but overruled his improper

bolstering objection as follows:

       State:          Was a verbal history taken of [I.L.]?

       Lang:           There was.

       State:          Was she able to describe what had happened to her?

       Lang:           Yes, she was.

       State:          Was she able to describe who assaulted her?

       Lang:           Yes, she was.

       State:          If you would, could you tell me what her verbal history was?

       Lang:           She stated that - -

       Defense #1:     Objection, Your Honor, hearsay.

       Court:          Sustained, counsel.

       Lang:           She stated that it was the - -

       Defense #1:     Objection.

       Court:          Approach, counsel.

       (At the Bench, on the record)

       Court:          I’ve even got us a mike over here today. Here’s why I sustained
                       the objection. The case law indicates you’re not entitled to general
                       reading of the case history but you can - - she’s allowed to tell you
                       the case history necessary to show what her exam showed that’s
                       connected to that.

                                                 –8–
       State:        Okay.

       Defense #2:   Judge, may I ask a question on that?

       Court:        Yes, sir.

       Defense #2:   Any question that would get her to elicit some kind of a hearsay
                     statement against Eduardo, I don’t know if that statement
                     necessarily gets out of a hearsay objection for purposes of medical
                     diagnosis, because you’re not trying to make a medical diagnosis
                     as far as anything she may be complaining about. She’s just there
                     to see if - - to do an examination to see if there’s evidence of
                     sexual - -

       Court:        Yeah, but what I’m saying is if she has findings, then she’s
                     allowed to indicate what parts of the verbal history coincide with
                     that finding.

       Defense #2:   That’s fair enough.

       Defense #1:   It does bolster the testimony of the complaining witness though.
                     It’s bolstering.

       Court:        Well, I’ll overrule that one. I mean, the case law I think is pretty
                     clear of what you can and can’t do. You can’t just generally get up
                     and have her read it, okay.

       (Bench conference concluded)

       State:        Dr. Lang, based on the verbal history, were there parts of [I.L.] that
                     needed to be checked?

       Lang:         Yes

       State:        What parts needed to be checked?

       Lang:         She would require a full exam where we would basically make
                     sure there was (sic) no sores in her mouth or anything of that sort
                     in addition to the normal exam and also we’ll check her genital
                     area.

Appellant argues that Lang’s testimony was improper bolstering because it implied that Lang

believed the complainant’s story; otherwise, Lang would not have ordered additional testing.

Appellant further argues that by implicitly testifying that she believed complainant, Lang

enhanced the complainant’s credibility before the jury. The State contends this issue is not
                                              –9–
properly before the Court because the objection was sustained on hearsay grounds and appellant

never secured an adverse ruling. The State also argues that appellant did not preserve this issue

for appeal because appellant did not object when the same evidence was subsequently admitted.

       In order to preserve error in admitting evidence, defense counsel was required to make a

proper objection and get a ruling on that objection, which he did. TEX. R. APP. P. 33.1; see also

Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Valle v. State, 109 S.W.3d 500, 509

(Tex. Crim. App. 2003). In addition, defense counsel was required to object each time the

inadmissible evidence was offered or obtain a running objection. Lane, 151 S.W.3d at 193;

Valle, 109 S.W.3d at 509. “An error [if any] in the admission of evidence is cured where the

same evidence comes in elsewhere without objection.” Lane, 151 S.W.3d at 193; see also Leday

v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (“Our rule . . . is that overruling an

objection to evidence will not result in reversal when other such evidence was received without

objection, either before or after the complained-of ruling.”). In the present case, after the trial

court overruled defense counsel’s bolstering objection, defense counsel failed to object when

Lang was asked and answered a number of questions regarding the medical and genital

examination of complainant, and other medical testing performed as part of the examination.

Any error in the admission of the objected-to testimony was therefore cured. Lane, 151 S.W.3d

at 193; Valle, 109 S.W.3d at 509–10. Appellant’s second issue is overruled.




                                              –10–
                                        CONCLUSION

       Having overruled appellant’s issues, we affirm the trial court’s judgments.



                                                  /David Lewis/
                                                  DAVID LEWIS
                                                  JUSTICE

Do Not Publish
TEX. R. APP. P. 47

130088F.U05




                                              –11–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

EDUARDO ENRIQUE ALFARO,                             On Appeal from the 401st Judicial District
Appellant                                           Court, Collin County, Texas
                                                    Trial Court Cause No. 401-82025-2011.
No. 05-13-00088-CR        V.                        Opinion delivered by Justice Lewis.
                                                    Justices FitzGerald and Lang participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 19th day of February, 2014.




                                                    /David Lewis/
                                                    DAVID LEWIS
                                                    JUSTICE




                                            –12–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

EDUARDO ENRIQUE ALFARO,                             On Appeal from the 401st Judicial District
Appellant                                           Court, Collin County, Texas
                                                    Trial Court Cause No. 401-82026-2011.
No. 05-13-00089-CR        V.                        Opinion delivered by Justice Lewis.
                                                    Justices FitzGerald and Lang participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 19th day of February, 2014.




                                                    /David Lewis/
                                                    DAVID LEWIS
                                                    JUSTICE




                                            –13–
