Opinion filed December 31, 2015




                                        In The


        Eleventh Court of Appeals
                                      __________

                               No. 11-13-00049-CR
                                      __________

                    LUIS RAMIREZ RUEDAS A/K/A
                   LUIS RAMIREZ RUEBAS, Appellant
                                           V.
                     THE STATE OF TEXAS, Appellee

                On Appeal from the Criminal District Court No. 3
                            Tarrant County, Texas
                       Trial Court Cause No. 1274451D

                      MEMORANDUM OPINION
      Appellant, Luis Ramirez Ruedas a/k/a Luis Ramirez Ruebas, was convicted
of aggravated sexual assault of a child under fourteen years of age and sentenced to
life imprisonment in the Institutional Division of the Texas Department of Criminal
Justice. In three issues, Appellant asserts that (1) the trial court abused its discretion
in determining that a child witness was competent to testify, (2) the trial court erred
in admitting into evidence testimony from multiple outcry witnesses, and (3) the trial
court erred in overruling defense counsel’s objection to improper jury argument by
the prosecutor. We affirm.

                                 Background Facts
       While eating lunch at a restaurant, K.C. asked her mother, C.G., to go with
her to the restroom. K.C. was five years old at the time, and she usually went to the
restroom by herself. K.C. told C.G. that “it was burning” when she used the
restroom. C.G. asked K.C. whether she had been hurt by her bicycle, and K.C.
replied that she had not. C.G. then inquired whether somebody had touched her, to
which K.C. answered “yes.” K.C. indicated that Appellant was the one who hurt
her.   K.C. would occasionally visit Appellant’s home and would play with
Appellant’s child, who was roughly the same age. K.C. stated that Appellant had
touched her when Appellant’s wife was taking care of her.
       K.C. told C.G. that, while she was at Appellant’s home, she needed to use the
restroom but someone was in the restroom by the living room. She then walked to
the restroom in Appellant’s bedroom.          Upon exiting the restroom, K.C. saw
Appellant by the bed. K.C. told her mother that Appellant then called her, lifted her
onto the bed, pulled her underwear down, and touched her vagina. After receiving
this report from K.C., C.G. returned to the dining area of the restaurant and told her
husband what K.C. had reported to her. K.C.’s parents took her to Cook Children’s
Hospital and spoke with a social worker, a nurse, and a doctor about their concerns.
       C.G. subsequently filed a statement with the Grand Prairie Police Department.
She also took K.C. to Alliance for Children, where K.C. was interviewed by Carrie
Paschall, a forensic interviewer with the Tarrant County District Attorney’s Office.
Paschall was designated as an outcry witness and allowed to testify regarding what
K.C. had told her. K.C. told Paschall that, after coming out of the restroom at


                                          2
Appellant’s house, she was taken by Appellant into a room where he laid her down,
pulled her pants and underwear down, and made contact with her vaginal area with
his belt, which caused her pain.
        The State called K.C. as a witness at trial. The trial court conducted a hearing
outside the presence of the jury prior to her testimony to determine her competency
to testify. The trial court found K.C., who was six years old at the time of trial, to
be a competent witness. K.C. testified that, after using the restroom at Appellant’s
house, she climbed onto the bed in Appellant’s bedroom. She further testified that
Appellant removed her underwear and penetrated her vagina with either his penis or
his belt. K.C. testified that Appellant told her not to tell anyone about what he had
done.
        The jury convicted Appellant of aggravated sexual assault of a child and
indecency with a child by contact and exposure. At the request of Appellant, the
judgment was reformed to a single conviction of aggravated sexual assault of a child.
In a special issue submitted at the punishment phase, the jury determined that the
victim was a child younger than six years of age at the time of the offense.

                                         Analysis
        In his first issue, Appellant asserts that the trial court abused its discretion in
determining that K.C. was competent to testify. Appellant contends that K.C. gave
answers that were inaccurate and showed an inability to intelligently observe events
in question. He also argues that she lacked the capacity to recollect or narrate events.
A trial court’s determination of whether a child witness is competent to testify is
reviewed under an abuse of discretion standard. Broussard v. State, 910 S.W.2d
952, 960 (Tex. Crim. App. 1995). We review the child’s responses to qualification
questions, as well as the child’s entire testimony, to determine whether the trial
court’s ruling constituted an abuse of discretion. Davis v. State, 268 S.W.3d 683,


                                             3
699 (Tex. App.—Fort Worth 2008, pet. ref’d); De Los Santos v. State, 219 S.W.3d
71, 80–81 (Tex. App.—San Antonio 2006, no pet.); Fox v. State, 175 S.W.3d 475,
481 (Tex. App.—Texarkana 2005, pet. ref’d); Woods v. State, 14 S.W.3d 445, 451
(Tex. App.—Fort Worth 2000, no pet.).
       Texas Rule of Evidence 601(a)(2) provides that a child “whom the court
examines and finds lacks sufficient intellect to testify concerning the matters in
issue” is incompetent to testify. TEX. R. EVID. 601(a)(2). Under this rule, the party
seeking to exclude the witness from testifying must raise the issue of the witness’s
competency and shoulders the burden of establishing incompetency. Gilley v. State,
418 S.W.3d 114, 120 (Tex. Crim. App. 2014). Under Rule 104(a) of the Texas Rules
of Evidence, the competency of a child witness is a preliminary question for the trial
court to determine, and the trial court is not bound by the Rules of Evidence in
making that determination. Id. at 121. When the competency of a child witness is
challenged, the trial court must assure itself that the child has (1) the ability to
intelligently observe the events in question at the time of the occurrence, (2) the
capacity to recollect the events, and (3) the capacity to narrate the events. Watson v.
State, 596 S.W.2d 867, 870 (Tex. Crim. App. 1980). The third element, involving
the capacity to narrate, requires that the witness is able to understand the questions
asked, frame intelligent answers to those questions, and understand the moral
responsibility to tell the truth. Id. at 870.
       Prior to receiving testimony at trial, the trial court asked K.C. a series of
questions to determine her competency to testify. The trial court asked K.C. if she
knew where she was, and she initially replied, “Home.” After determining that she
would be more comfortable answering the questions in Spanish, the trial court
continued its questioning through an interpreter. The trial court again asked if she
knew where she was or what the building was called, to which she replied, “It’s a
court.” The trial court then asked, “[I]f I told you that the robe I had on was yellow,
                                                4
is that the truth or a lie?” K.C. replied, “A lie.” The trial court asked, “Are you
supposed to tell the truth or are you supposed to tell lies?” K.C. replied, “The truth.”
K.C. was then asked, “And why is it important to tell the truth?” K.C. answered,
“Because if not, somebody’s going to get mad at you.” She further answered that it
was “good” to tell the truth and “bad” to tell lies.
       The court then asked K.C. several more questions, such as the following: if
she knew what city she lived in, to which she replied, “I don’t know”; if she knew
what city her school was in, to which she replied, “No”; if she knew what state she
was in, to which she replied, “I don’t remember”; and if she knew the day of the
week, to which she replied, “No.” The trial court further asked her if there were
sometimes things she could not remember, to which she replied, “No.” K.C. was
then asked, “If we asked you a question and you didn’t know the answer, what would
your answer be?” K.C. answered, “That I don’t know.” At the conclusion of the
preliminary examination, Appellant’s trial counsel argued that K.C. was
“obviously[] not competent” because “[s]he has no comprehension of time or space
or place.” The trial court overruled Appellant’s objection and permitted K.C. to
testify at trial.
       On direct examination during the trial, K.C. was asked if she remembered
going to the hospital, to which she replied, “No.” The prosecutor then asked K.C. if
K.C. remembered talking to her about what happened. K.C. replied, “Yes.” K.C.
was asked, “Do you remember who touched you?” K.C. replied, “No.” With the
assistance of some “anatomical dolls,” K.C. subsequently testified that someone had
“touched” her and that it was a “bad touch.” She testified that someone had touched
her vagina under her clothes and that it happened at her friend’s house. K.C.
subsequently identified Appellant as the person that had removed her underwear and
penetrated her vagina.


                                           5
      K.C.’s responses to the trial court’s qualification questions, as well as
questions from counsel regarding her ability to recollect and narrate the events, were
at times equivocal regarding her competency to testify. As noted above, some of the
initial confusion with K.C.’s responses was attributable to a language translation
issue. Furthermore, we must review the child’s entire testimony, as well as the
child’s responses to qualification questions, to determine whether the trial court’s
ruling constituted an abuse of discretion. Davis, 268 S.W.3d at 699. Our review of
the entirety of K.C.’s testimony demonstrates that she was able to observe the events
of her encounter with Appellant, recollect those events, and then narrate them at trial.
See Watson, 596 S.W.2d at 870. Considering her testimony as a whole, we cannot
conclude that the trial court abused its discretion in determining that K.C. was
competent to testify. Appellant’s first issue is overruled.
      In Appellant’s second issue, he asserts that the trial court erred in permitting
multiple outcry witnesses to testify at trial. The State initially called the victim’s
mother, C.G., as an outcry witness. Afterwards, the State called Paschall, a forensic
interviewer, as an additional outcry witness. The prosecutor asserted that Paschall
was also a proper outcry witness because K.C. told her additional details that she did
not tell C.G. After conducting a hearing outside the presence of the jury, the trial
court ruled that Paschall could also testify as an outcry witness. On appeal,
Appellant challenges the trial court’s ruling permitting Paschall to testify as an
additional outcry witness.
      We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)
(op. on reh’g). We will reverse the trial court’s decision only if it acted arbitrarily,
unreasonably, or without reference to any guiding rules or principles. Id. at 380.
We will uphold the trial court’s ruling if it is within the zone of reasonable
disagreement. Id. at 391. A trial court has “broad discretion” to determine the
                                           6
admissibility of outcry evidence, and we will not disturb its determination as to the
proper outcry witness absent a showing in the record that the trial court clearly
abused its discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990);
Smith v. State, 131 S.W.3d 928, 931 (Tex. App.—Eastland 2004, pet. ref’d).
      Article 38.072 of the Texas Code of Criminal Procedure creates a hearsay
exception for a child complainant’s out-of-court “statements” that “describe . . . the
alleged offense,” so long as those statements “were made to the first [adult] person
. . . to whom the child . . . made a statement about the offense.” TEX. CODE CRIM.
PROC. ANN. art. 38.072, § 2(a) (West Supp. 2015); see Bays v. State, 396 S.W.3d
580, 585 (Tex. Crim. App. 2013). Hearsay testimony from more than one outcry
witness may be admissible under Article 38.072 if the witnesses testify about
different events. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011) (citing
Broderick v. State, 35 S.W.3d 67, 73–74 (Tex. App.—Texarkana 2000, pet. ref’d)).
Thus, admissible outcry witness testimony is event-specific, not person-specific.
Eldred v. State, 431 S.W.3d 177, 181–82 (Tex.App.–Texarkana 2014, pet. filed);
Polk v. State, 367 S.W.3d 449, 453 (Tex.App.–Houston [14th Dist.] 2012, pet. ref’d).
Because designation of the proper outcry witness is event-specific, when a child is
victim to more than one instance of sexual assault, it is possible to have more than
one proper outcry witness, so long as the outcries concerned different events and not
simply repetition of the same event told to different individuals. Robinett v. State,
383 S.W.3d 758, 762 (Tex. App.—Amarillo 2012, no pet.); Brown v. State, 189
S.W.3d 382, 387 (Tex. App.—Texarkana 2006, pet. ref’d).
      Appellant’s second issue centers on whether K.C.’s outcry to Paschall
concerned a different offense than K.C.’s outcry to C.G. We note that Appellant
was tried for two offenses. The first count in the indictment charged him with
aggravated sexual assault of a child, a first-degree felony, by alleging that he
intentionally or knowingly penetrated the sexual organ of K.C. with either a belt or
                                          7
an unknown object. See TEX. PEN. CODE ANN. § 22.021(a)(1)(B)(i), (e) (West Supp.
2015). The second count of the indictment charged Appellant with indecency with
a child by contact, a second-degree felony, by touching the sexual organ of K.C. See
id. § 21.11(a)(1), (c)(1), (d) (West 2011).
      K.C. first told C.G. that Appellant pulled her underwear down and touched
her vagina, but made no mention of penetration. During the subsequent interview
with Paschall, K.C. told her that Appellant contacted her vaginal area with his belt,
which “went between the labia of her female sexual organ.” In Divine v. State, the
child victim first denied that digital penetration had occurred when making her initial
outcry statement to her grandmother. 122 S.W.3d 414, 420 (Tex. App.—Texarkana
2003, pet. ref’d).   However, she later told a forensic interviewer that digital
penetration had occurred. Id. The Texarkana Court of Appeals held that the trial
court did not abuse its discretion in allowing both outcry witnesses to testify because
the outcries concerned different matters. Id. The court reasoned that, “[a]t the
simplest level, the child did not make an outcry about penetration to the
grandmother, but did make such an outcry to the interviewer.” Id.
      The facts in Divine are analogous to the facts in this appeal. K.C.’s initial
outcry to C.G. did not address the matter of penetration, while her subsequent outcry
to Paschall did address penetration. Penetration was an essential element of the
higher level offense of aggravated sexual assault of a child as alleged in the first
count of the indictment. Thus, Paschall was the first person over the age of eighteen
that K.C. told about the offense as alleged in the first count of the indictment, which
was also the sole offense for which Appellant was convicted. See Turner v. State,
924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref’d) (citing Garcia, 792
S.W.2d at 91–92) (the outcry witness must be the first person to whom the child
makes a statement that, in some discernible manner, describes the alleged offense).


                                              8
Accordingly, the trial court did not abuse its discretion when it permitted Paschall to
testify as an outcry witness. Appellant’s second issue is overruled.
      In Appellant’s third issue, he asserts that the trial court erred in denying his
objection to improper jury argument by the prosecutor. He contends that the
prosecutor’s argument constituted an improper attempt to inject the prosecutor’s
personal opinion about the veracity of the child victim. See Menefee v. State, 614
S.W.2d 167, 168 (Tex. Crim. App. 1981). A trial court’s ruling on an objection to
improper jury argument is reviewed for an abuse of discretion. See Garcia v. State,
126 S.W.3d 921, 924 (Tex. Crim. App. 2004).
      The prosecutor made the following argument to the jury:

            And, ladies and gentlemen, I submit to you, he also calls into
      question my own reputation. From the very beginning he said he’d
      have you believe that all this was a crime. Ladies and gentlemen, we
      would have you believe it was a crime because it is.
            I do not stand here today after all that I’ve done, all the schooling
      I’ve gone through because I’m part of a conspiracy. Ladies and
      gentlemen, I stand here today because [K.C.] is telling the truth.

Appellant’s trial counsel objected that this statement was “[p]rosecutor opinion, not
admissible.” The trial court overruled the objection. Trial counsel then refined his
objection by asserting that the prosecutor was “stating her own opinion.” The
prosecutor continued as follows: “I’m responding to what he’s accusing all of us of.
He’s accusing us of making up a conspiracy. Accusing these witnesses that they
would do that. And you know why? Because there’s too much consistency to look
away. Too much consistency.” The prosecutor then gave additional arguments
detailing why the jury should believe K.C.’s version of the events, including arguing,
“[H]ow does a five-year-old child even conceive of this? Because it happened to
her. Because she can’t forget it.”



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      “It is the duty of trial counsel to confine their arguments to the record;
reference to facts that are neither in evidence nor inferable from the evidence is
therefore improper.” Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App.
1973) (quoting 56 TEX. JUR. 2d Trial § 271, at 613). “Thus, proper jury argument
generally falls within one of four general areas: (1) summation of the evidence; (2)
reasonable deduction from the evidence; (3) answer to argument of opposing
counsel; and (4) plea for law enforcement.” Brown v. State, 270 S.W.3d 564, 570
(Tex. Crim. App. 2008) (citing Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App.
1999); Alejandro, 493 S.W.2d at 231). “The arguments that go beyond these areas
too often place before the jury unsworn, and most times believable, testimony of the
attorney.” Alejandro, 493 S.W.2d at 232. We examine allegedly improper argument
in light of the facts adduced at trial and in the context of the entire argument.
McGee v. State, 774 S.W.2d 229, 239 (Tex. Crim. App. 1989).
      It is ordinarily improper for a prosecutor, during his argument, to vouch for
the credibility of a witness. Chapman v. State, 503 S.W.2d 237, 238 (Tex. Crim.
App. 1974). However, if the argument in question was invited by argument of
defense counsel and was in reply thereto, no reversible error is shown. Id. In
Chapman, the Court of Criminal Appeals held that a prosecutor’s statement during
closing argument—that “I would ask you to believe that I would not intentionally or
knowingly be a party - - - to submitting perjured evidence before you”—was invited
when defense counsel asserted that the prosecution’s narrative was fabricated. Id.
      In this case, Appellant acknowledges in his brief that trial counsel’s strategy
“was to discredit the child witness and to call into question the very logic of the
State’s case.” In his opening statement at trial, trial counsel said:

             Ladies and gentlemen, what you hear in this case will strike you
      as being illogical, nonsensical, improbable, and at times professionally
      constructed. What you will hear in this case will make you understand

                                           10
      that what is being sold to you as a crime is not just improbable, not just
      illogical, but impossible. And, therefore, you will understand that it is
      not true.
(Emphasis added). Trial counsel asked K.C. on cross-examination, “And all the
people who have interviewed you have helped you remember the things you didn’t
remember?” In closing argument, trial counsel asserted that Detective Aaron
Martinez, who took C.G.’s offense report, improperly influenced Paschall before she
interviewed K.C. Appellant’s trial counsel stated:
      [W]here does he come at you with this cornucopia, this plethora of
      evidence? Does he go to the house? Does he get a layout of the house?
      Does he take pictures? Does he talk to neighbors? Does he do
      anything? No.
            Not until February 9th of 2012 when he sends a copy of his
      offense report to the forensic examiner. When his mind is already made
      up and he’s decided: Well, now I have to put words in their mouths. I
      have to convince them as well.
             On that same day that he sends his offense report to Carrie
      Paschall, he calls up Cook’s and he says, I have a little girl that I need
      to get examined. Tells them what’s going on.
      Appellant’s trial counsel also implied that Paschall led K.C. toward
Detective Martinez’s allegedly fabricated narrative during her interview:

            Q: All right. And now let me ask you, technique-wise, if -- if a
      child on -- when initially asked says -- for example, let’s take a
      hypothetical conversation. If a child says, no, I wasn’t touched, you
      don’t end the conversation there, do you?
            A: Depends on what the facts are up to that point.

             Q: Okay. Now, there is -- there is -- there is a body of -- of
      expertise that suggests that an interviewer should not have a report and
      not necessarily know about, quote, alleged facts when conducting the
      interview, less the interview [sic] try to lead the child. Are you aware
      of that?


                                         11
The record makes it clear that Appellant’s trial counsel, on multiple occasions,
asserted or implied that the State’s narrative was, in his own words, “at times
professionally constructed.”
      The Amarillo Court of Appeals addressed a similar situation in Lange v. State,
57 S.W.3d 458 (Tex. App.—Amarillo 2001, pet. ref’d). The prosecutor in Lange
argued in closing argument that he “took an oath and I resent his allusions that I’m
trying to do a perversion of justice . . . in coaching that witness.” 57 S.W.3d at 468.
In response to the defense counsel’s objection on the ground of “personal opinion,”
the prosecutor asserted that the argument was invited based upon his name being
included on a list of people that the victim had to fool if she was lying. Id. The court
noted that defense counsel had attempted to attack the victim’s credibility by
showing inconsistencies in her story and suggesting that she had been manipulated
by others into bringing the allegations. Id. at 469. The court further noted that the
child victim was specifically questioned during cross-examination as to each person
she had spoken to about the alleged incidents, including the prosecutors. Id. The
court concluded that the prosecutor’s argument had been invited based upon the
manner in which defense counsel had attacked the victim’s credibility. Id.
      Trial counsel’s attack on K.C.’s credibility and his suggestion that she had
been manipulated is very similar to the situation in Lange. In this regard, trial
counsel, during his cross-examination of K.C., made reference to the fact that K.C.
had visited with the prosecutor in preparation for trial. Accordingly, the prosecutor’s
argument vouching for K.C.’s veracity was invited, as was the case in Lange.
However, the prosecutor went a step further than the prosecutor in Lange when she
stated that K.C. “is telling the truth.” See Lange, 57 S.W.3d at 469 (noting that “[t]he
prosecutor never directly stated that he believed the complainant”). We conclude
that it was improper for the prosecutor to bolster K.C.’s testimony by injecting into


                                          12
the argument her personal opinion about K.C.’s honesty and truthfulness. See
Menefee, 614 S.W.2d at 168.
      Even if an argument is improper, it will not constitute grounds for reversal
unless the statements to the jury injected new and harmful facts into the case or were
so extreme and manifestly improper that they deprived the defendant of a fair and
impartial trial. Brown, 270 S.W.3d at 573 n.3. “In determining whether jury
argument is extreme or manifestly improper, we look at the entire record of final
arguments to determine if there was a willful and calculated effort on the part of the
State to deprive appellant of a fair and impartial trial.” Id. (quoting Cantu v. State,
939 S.W.2d 627, 633 (Tex. Crim. App. 1997)) (internal quotation mark omitted).
“[I]t ‘is not enough that the prosecutors’ remarks were undesirable or even
universally condemned.’”      Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983)). “The
relevant question is whether the prosecutors’ comments ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’” Id. (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
      In Flores v. State, the Corpus Christi Court of Appeals addressed a similar
situation when the prosecutor argued, “This is a little girl. She got up here and told
the truth.” 778 S.W.2d 526, 528 (Tex. App.—Corpus Christi 1989, no pet.). The
court concluded that the argument was not so extreme as to require reversal given
the context in which the credibility of the complainant was being attacked. Id. The
same rationale applies to the facts in this case given trial counsel’s attack on K.C.’s
credibility and his assertion that her allegation was “professionally constructed.”
The isolated comment was made within a broader response addressing the
consistency of K.C.’s allegations and the difficulties of a young child in being able
to remember an event and testify about it afterward. Moreover, the thought that the


                                          13
prosecutor believed that K.C. was telling the truth was not so extreme as to result in
a denial of due process. Accordingly, Appellant’s third issue is overruled.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


December 31, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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