Affirmed; Opinion Filed February 13, 2018.




                                                      In The
                                   Court of Appeals
                            Fifth District of Texas at Dallas
                                                No. 05-16-01457-CR

                          NELSON ACOSTA MALDONADO, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                         On Appeal from the 283rd Judicial District Court
                                      Dallas County, Texas
                              Trial Court Cause No. F16-53801-T

                                MEMORANDUM OPINION
                             Before Justices Francis, Evans, and Boatright
                                      Opinion by Justice Evans
         Appellant Nelson Acosta-Maldonado appeals his conviction for aggravated sexual assault

of RM, a child under fourteen years of age. In two issues, appellant asserts that the trial court erred

in: (1) admitting the victim impact testimony from a child advocacy therapist and (2) excluding,

on hearsay grounds, extrinsic evidence of a prior inconsistent statement of a State’s witness. We

affirm the trial court’s judgment.

                                           I.       BACKGROUND

         A child protective service investigator went to an elementary school to investigate potential

physical abuse of AM. The investigator interviewed AM, RM, and DM.1 The investigator

concluded AM’s injury was the result of an accident, but RM’s interview raised concerns of sexual


   1
       AM and DM are the brothers of RM.
abuse. RM and her brothers were taken to the Dallas Children’s Advocacy Center where DM and

RM were interviewed forensically. The children testified that they lived in an apartment with their

brother (AM), mother, father, and appellant (father’s cousin). Mother and father slept in one

bedroom with AM while RM, DM and appellant slept in another bedroom. RM testified that

appellant “hurt her body,” touched her with his penis, and had penetrated her body.

       Appellant was indicted for the offense of aggravated sexual assault of RM, a child under

fourteen years of age. Appellant pleaded not guilty. The jury found him guilty and the trial court

assessed punishment at twenty-five years’ imprisonment. Appellant then filed this appeal.

                                        II.    ANALYSIS

       A.      Victim-Impact Testimony

       In his first issue, appellant asserts that the trial court erred in admitting “victim-impact

testimony” from the child advocacy therapist. We disagree.

                  1.      Additional facts

       Ana Guzman, RM’s therapist at the Dallas Children’s Advocacy Center, was present

during RM’s testimony and also testified as an expert witness. Guzman testified that she had

worked with RM for twenty sessions and noted that RM had a very high avoidance of speaking

about the abuse during the sessions. Guzman further testified that part of the treatment that she

provided RM is defined as trauma focus cognitive behavioral therapy. Appellant’s attorney

objected to testimony as being nonresponsive and the trial court directed the State to proceed to its

next question but did not make a ruling.

       Guzman then proceeded to testify about RM’s reluctance to talk about the abuse and

described disassociation to the jury. Guzman testified that RM disassociated both in the sessions

and during her trial testimony when she (1) hesitated to answer a question; (2) had to have a

question repeated; (3) stared into space; or (4) did not face one side of the courtroom. Guzman


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then testified that she taught RM some relaxation skills to help her calm down and self-regulate.

The following exchange then took place:

         [State’s attorney]:           Tell us about the treatment paradigm that you used
                                       with these kids.

         [Guzman]:                     So the treatment that I use with [RM] is Trauma
                                       Focused Cognitive Behavioral Therapy, or TFCBT -
                                       -

         [Appellant’s attorney]:       I object relevance, Your Honor. At this point I object
                                       again to relevance. I’ll withdraw the objection. I
                                       made a previous objection to this witness on that
                                       ground.

         [State’s attorney]:           You can continue.

Guzman then continued to testify about TFCBT and how it applied to RM without any further

objection.

                   2.      Analysis

         We conclude that the trial court did not err in allowing this testimony for several reasons.

As an initial matter, Guzman’s testimony did not constitute victim-impact testimony. Victim-

impact evidence has been defined as evidence concerning the effect of the crime after the crime

occurs. See Reynolds v. State, 371 S.W.3d 511, 525 (Tex. App.—Houston [1st Dist.] 2012, pet.

ref’d). Generally, this evidence is admissible at the punishment phase and not the guilt-innocence

phase because it does not tend to make more or less probable the existence of any fact of

consequence with respect to guilt or innocence. Id. Here, however, Guzman’s testimony does not

specifically address the effect of the crime on RM or how it affected RM’s family. Instead,

Guzman testified about the treatment she used to help RM prepare to testify, not the effect of the

abuse.

         Further, even if this testimony were considered victim-impact testimony, appellant has

failed to preserve this issue for appellate review. To preserve a complaint regarding the erroneous

admission of victim-impact evidence for appellate review, the defendant must object on the ground
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that the evidence constitutes impermissible victim-impact evidence.            Id.   As stated above,

appellant’s attorney initially objected on a relevance basis, not that the evidence constituted victim-

impact evidence. However, appellant’s attorney then withdrew the objection and relied on a

previous objection. During a hearing outside the presence of the jury, appellant had earlier

objected to Guzman being present during the child’s testimony and then testifying later as an expert

witness. Appellant specifically objected that Guzman’s testimony during the case in chief would

be irrelevant and highly prejudicial. This earlier objection, however, failed to include an objection

that the testimony would constitute victim-impact evidence. Thus, we conclude that appellant did

not preserve his argument because “the objection at trial [did] not comport with the complaint

raised on appeal.” See Karnes v. State, 127 S.W.3d 184, 195 (Tex. App.—Fort Worth 2003, pet.

ref’d) (defendant failed to preserve error because defense objected that the testimony was

irrelevant and highly prejudicial, not that it constituted victim-impact testimony, at trial). For these

reasons, we overrule appellant’s first issue.

       B.      Exclusion of Evidence

       In his second issue, appellant argues that the trial court erred in excluding, on hearsay

grounds, extrinsic evidence of a prior inconsistent statement made by father to the effect that

mother stated that appellant had not assaulted RM. We disagree.

                   1.      Standard of review

       A trial court’s decision to admit or exclude evidence is viewed under an abuse of discretion

standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial court abuses its

discretion when its decision lies outside the zone of reasonable disagreement. Green v. State, 934

S.W.2d 92, 102 (Tex. Crim. App. 1996).

                   2.      Additional facts

       Mother testified as follows during her cross-examination:


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       [Appellant’s attorney]:         Did you ever tell Douglas Larosa – Larios – did you
                                       ever tell Douglas Larios that your daughter had said
                                       the allegations never happened?

       [Mother]:                       That what my daughter had said it never happened?
                                       No.

       [Appellant’s attorney]:         That [appellant] never touched her, that you told Mr.
                                       Larios that that never happened?

       [Mother]:                       No, I told him that I didn’t know. Who knew was the
                                       girl.

       [Appellant’s attorney]:         Did you ever tell your husband that, [FM], that your
                                       daughter said that she was never touched by
                                       [appellant]?

       [Mother]:                       No.

       The State also called father to testify during the trial. The State asked father about an

affidavit which the State marked as State’s Exhibit 10. Father testified that he went to speak with

appellant’s attorney at the request of his aunt. The trial court then conducted a hearing outside the

presence of the jury. During the hearing, the trial court asked appellant’s attorney if he had

impeached mother with the affidavit. Appellant’s attorney stated that he was going to use father

to impeach mother. When the trial resumed, father testified that his aunt called him about going

into appellant’s attorney’s office to sign an affidavit. Father testified that his aunt and appellant’s

attorney’s assistant told him that the police could arrest him if he did not sign the paper. The

affidavit contained the following statement: “[Mother] told me that [appellant] never touched or

sexually assaulted [RM], my daughter.” Father then testified that he did not agree with that

statement because mother never said that to him. The affidavit, State’s Exhibit 10, was admitted

without objection.

       Appellant called Douglas Larios as a witness during the trial. Larios testified that he went

to appellant’s attorney’s office and met with father and appellant’s attorney. Larios testified that




                                                 –5–
he was present when father signed the affidavit described above. The following testimony then

took place:

       [Appellant’s attorney]:       Did we explain to him in great detail about what was
                                     in the affidavit that he signed?

       [Larios]:                     Yes, yes.

       [Appellant’s attorney]:       Did he -- did he complain in any way that he did not
                                     understand it?

       [Larios]:                     No, he only made a change to his statement.

       [Appellant’s attorney]:       Okay. And do you remember that he said he made
                                     clear that he had been told by his wife --

       [State’s attorney]:           Objection hearsay, objection leading.

       [Trial court]:                Sustained.

       [Appellant’s attorney]:       Have you ever been told by Ms. -- I'm sorry, have
                                     you ever been told by [mother] that the child --

       [Appellant’s attorney]:       Objection hearsay.

       [Trial court]:                Sustained.

                   3.    Analysis

       Appellant argues that pursuant to Texas Rule of Evidence 613(a)(4), Larios’s testimony

about what father had been told by mother is admissible as extrinsic evidence. We disagree. Rule

613(a) pertains to a prior inconsistent statement made by the witness. See TEX. R. EVID. 613(a).

If the witness denies making the statement, then extrinsic evidence of the prior inconsistent

statement may be offered. See TEX. R. EVID. 613(a)(4) (“[e]xtrinsic evidence of a witness’s prior

inconsistent statement is not admissible unless the witness is first examined about the statement

and fails to unequivocally admit making the statement.”). Regardless, it must be a statement made

by the witness. See Abdygapparova v. State, 243 S.W.3d 191, 204 (Tex. App.—San Antonio 2007,

pet. ref’d). Here, the statement offered by appellant is testimony from a third party about

something father allegedly was told by mother. As the statement at issue was not mother’s own

                                                 –6–
statement, but something allegedly repeated by father to Larios, the trial court did not abuse its

discretion in excluding Larios’s testimony about such a statement.

                                    III.    CONCLUSION

       We resolve appellant’s issues against him and affirm the trial court’s judgment.



                                                            /David Evans/
                                                            DAVID EVANS
                                                            JUSTICE


Do Not Publish
TEX. R. APP. P. 4
161457F.U05




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                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 NELSON ACOSTA-MALDONADO,                           On Appeal from the 283rd Judicial District
 Appellant                                          Court, Dallas County, Texas
                                                    Trial Court Cause No. F16-53801-T.
 No. 05-16-01457-CR        V.                       Opinion delivered by Justice Evans.
                                                    Justices Francis and Boatright 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 13th day of February, 2018.




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