                                                                       PD-1614-14
                                                      COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                     Transmitted 2/2/2015 5:11:16 PM
                                                      Accepted 2/4/2015 11:06:27 AM
                                                                        ABEL ACOSTA
                        NO. PD-1614-14                                         CLERK

 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS




                JULIAN HOMERO VEGA, Appellant

                              vs.

                  THE STATE OF TEXAS, Appellee




  APPELLANT VEGA’S PETITION FOR DISCRETIONARY REVIEW
 OF THE JUDGMENT AND OPINION IN CAUSE NO. 13-13-00126-CR




                                    Respectfully submitted by
                                    Appellant's attorney,

                                    VICTORIA GUERRA
    February 4, 2015                Texas Bar No. 08578900
                                    320 W. Pecan Blvd.
                                    McAllen, Texas 78501
                                    (956) 618-2609
                                    (956) 618-2553 Fax




ORAL ARGUMENT WAIVED
UNLESS REQUESTED BY COURT
                 IDENTITY OF PARTIES AND COUNSEL

      Julian Homero Vega (hereinafter “Appellant” or “Mr. Vega”) certifies

that below is a complete list of all parties to the trial court’s judgment and

their trial counsel’s names, addresses and telephone number.

1. Mr. Flores, resides in the I.D.T.D.C.J., James Lynaugh Unit,, 1098
South Highway 2037, Fort Stockton, TX 79735. His TDCJ number is:
01821321.

2. Mr. Vega’s trial attorney was Oscar Vega, whose office address is 2415
N. 10th, McAllen ,TX 78501; phone number: (956) 630-1979.

Mr. Flores’ appellate counsel is the undersigned, Victoria Guerra, whose
address is 3219 N. McColl Rd., McAllen, TX 78501; phone number: (956)
618-2609; facsimile: (956) 618-2553.

3. Appellee is the State of Texas.

4. Appellee is represented by the Hidalgo County Criminal District
Attorney, Ricardo Rodriguez. Christopher Paul Cavazos and Richard
Daniel Gonzales were the trial attorneys. The Appellee’s appellate attorney
are Assistant Criminal District Attorney, Ted. Hake and Luis Gonzalez. All
of their addresses are at the Office of the Hidalgo County District Attorney,
Hidalgo County Courthouse, 100 N. Closner, Room 303, Edinburg, Texas
78539. Their phone number is (956) 318-2300 and their fax number is
(956) 318-2301.

5. This case was heard by the Trial Court, Judge Mario Ramirez, and by a
panel of three judges on the Thirteenth Court of Appeals who affirmed the
judgment of the Trial Court.


                                     /s/ Victoria Guerra
                                     Victoria Guerra




                                       ii
               TABLE OF CONTENTS


TABLE OF CONTENTS………………………………………………………..
LIST OF AUTHORITIES……………….……………………………………...

STATEMENT REGARDING ORAL ARGUMENT…………….……………

STATEMENT OF THE CASE……………………….…………………………

STATEMENT OF PROCEDURAL HISTORY………………………………..

GROUNDS FOR REVIEW………………………………………………………
ARGUMENT AND AUTHORITIES…………………………………………....
PRAYER……………………………………………………………………….....

CERTIFICATE OF SERVICE…………………………………………………
APPENDIX……………………………………………………………………….




                      iii
                              INDEX OF AUTHORITIES

Cases
Anderson v. State, 322 S.W.3d 401
  (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) ................................ 10

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ................... 10, 11

Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App. 1996) ................................. 15

Coit v. State, 808 S.W.2d 473 (Tex.Cr.App. 1991)...................................... 15

Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) ...................... 11

Ervin v. State, 331 S.W.3d 49
   (Tex. App.—Houston [1st Dist.] 2010, pet ref’d) ................................... 11

Gonzalez v. State, No. No. 06-12-00117-CR, 2013 Tex. App. LEXIS 9385,
  (Tex. App.—Corpus Christi July 29, 2013) ........................................... 15

Hobbs v. State, 298 S.W.3d 193 (Tex. Crim. App. 2009) ............................ 5

In re M.P.A., 364 S.W.3d 277 (Tex. 2012) ................................................ 10

In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ............ 15

Jackson v. Virginia, 433 U.S. 307 (1979) .................................................. 11

Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) ....................... 10

Johnson v. State, 978 S.W.2d 703 (Tex.App.──Corpus Christi 1998),
   aff'd, 23 S.W.2d 1 (Tex.Cr.App. 2000) ................................................... 15

Jordan v. State, 883 S.W.2d 664 (Tex. Crim. App. 1994)............................ 4

Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008) ......................... 10

Long v. State, 7 S.W.3d 316 (Tex.App.──Beaumont 1999, no pet.)............. 15

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) .................... 14

                                              iv
Martinez v. State, 198 S.W.3d 36
  (Tex. App.—Corpus Christi 2006, no pet.) ........................................... 10

Matlock v. State, 392 S.W.3d 662 (Tex. Crim. App. 2013) ........................ 10

McCormick v. U.S., 500 U.S. 257 (1991) .................................................. 15

Mullins v. State, 37 Tex. 337 (1872-73) ...................................................... 6

Musgrove v. State, 986 S.W.2d 738
  (Tex. App.—San Antonio 1999, pet ref’d.).............................................. 5

Reyes v, State, 849 S.W.2d 812 (Tex. Crim. App. 1983) ........................ 4, 8

McIntire v. State, 698 S.W.2d 652 (Tex. Crim. App. 1985) .......................... 5

Smith v. State, 286, S.W.3d 333 (Tex. Crim. App. 2009) ..................... 4-5, 7

State v. Gonzalez, 855 S.W.2d 692, 693 (Tex. Crim. App. 1993)................ 6

Tibbs v. Florida, 457 U.S. 31(1982) .......................................................... 10

Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) ............... 14

Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010) ........................ 13

Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) ......................... 11

Statutes
Tex. Pen. Code § 2.01 (Vernon 1997) ........................................................ 15

Tex. Pen. Code § 22.021(a) (1) (B) (i) ....................................................... 15

Other Authorities
http://www.nbcdfw.com/news/local/Scent-IDs-Lineups-Are-Junk-Science-
Innocence-Project-59803817.html ............................................................ 13

Rules

TEX. R. APP. P. 21.2 .................................................................................. 6
                                                   v
Constitutional Provisions

Texas Constitution art. V, § 6(a) ............................................................... 10

Fourteenth Amendment to the United States (U.S.) Constitution................. 15




                                                 vi
                              NO. PD-1614-14

 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS

    _____________________________________________________

                   JULIAN HOMERO VEGA, Appellant

                                     vs.

                    THE STATE OF TEXAS, Appellee

   _______________________________________________________


   APPELLANT VEGA’S PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     COMES NOW Julian Homero Vega, Appellant in the above styled

cause, and respectfully urges this Court to grant discretionary review of the

above cause.

             STATEMENT REGARDING ORAL ARGUMENT

     Appellant waives oral argument, unless this Court deems that oral

argument is necessary.




                                      1
                        STATEMENT OF THE CASE

      Appellant was indicted on or about April 18, 2012 in a three count

indictment. Count one alleges that “…Defendant, on or about the 31st day

of December A.D., 2011, and before the presentment of this indictment, in

Hidalgo County, Texas, did then and there intentionally or knowingly cause

the penetration of the sexual organ of                           a child who

was then and there younger than 14 years of age by defendant’s sexual

organ.” (C2-3).

      Count three alleges “…Defendant, on or about the 1st day of

November A.D., 2011, and before the presentment of this indictment, in

Hidalgo County, Texas, did then and there intentionally or knowingly cause

the penetration of the sexual organ of                           a child who

was then and there younger than 14 years of age by defendant’s finger.”

(C2-3).

      On October 4, 2012, after a jury trial, the Mr. Vega was found guilty of

aggravated sexual assault in count one, and not guilty as to count three.

(11R49).    On October 19, 2012, the district court assessed a sentence of

eighteen years’ imprisonment in the Texas Department of Criminal Justice

Institutional Division. (12R7).




                                      2
               STATEMENT OF PROCEDURAL HISTORY

     On October 4, 2012, after a jury trial, the Mr. Vega was found guilty of

aggravated sexual assault in count one, and not guilty as to count three.

(11R49).   On October 19, 2012, the district court assessed a sentence of

eighteen years’ imprisonment in the Texas Department of Criminal Justice

Institutional Division. (12R7). The judgment was signed on October 19,

2012. (C204-06). A motion for new trial was filed on November 14, 2012

with supporting evidence. (C209-220

     Mr. Vega filed a notice of appeal on November 15, 2012. (C221).

     On July 24, 2014, the Thirteenth Court of Appeals affirmed the Trial

Court’s judgment. See Appendix.

     Appellant’s motion for rehearing was overruled on October 28, 2014.

This Court granted until today February 2, 2015 to file Appellant’s PDR.

                        QUESTION FOR REVIEW

     ISSUE NO. 1: Whether the Trial Court erred in allowing his
     motion for new trial to be overruled by operation of law
     when Mr. Vega’s motion for new trial raised matters that
     were not determinable from the record and Mr. Vega did
     not waive his attendance at said hearing.

     ISSUE NO. 2: Whether the evidence is factually insufficient
     to support the verdict and judgment.

     ISSUE NO. 3: Whether the evidence is legally insufficient to
     support the verdict and judgment in this case.

                                     3
                                 ARGUMENT

      ISSUE NO. 1: Whether the Trial Court erred in allowing his
      motion for new trial to be overruled by operation of law
      when Mr. Vega’s motion for new trial raised matters that
      were not determinable from the record and Mr. Vega did
      not waive his attendance at said hearing.

      Appellant seeks review of the Court of Appeals’ reliance and

interpretation of Smith v. State, 286, S.W.3d 333 (Tex. Crim. App. 2009),

which is misplaced.

      As a prerequisite to a hearing, when the grounds in the motion are

based on matters not already in the record, a new trial motion must be

supported by an affidavit, either from the defendant or someone else,

specifically setting out the factual basis for the claim. The affidavit need not

establish a prima facie case, or even “reflect every component legally

required to establish relief” but affidavits that are conclusory in nature and

unsupported by facts do not provide the requisite notice of the basis for the

relief claimed and no hearing is required. See Reyes v, State, 849 S.W.2d

812, 816 (Tex. Crim. App. 1983); Jordan v. State, 883 S.W.2d 664, 665

(Tex. Crim. App. 1994) (holding that conclusory affidavits that did not state

“reasonable grounds” requiring hearing). In addition to alleging facts rather

than conclusions, there must be a showing of reasonable grounds for relief.

The supporting affidavit need not reflect every component legally required

                                       4
to establish relief so long as the affidavit “demonstrates reasonable

grounds” for relief. See McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim.

App. 1985); Musgrove v. State, 986 S.W.2d 738, 739,740 (Tex. App.—San

Antonio 1999, pet ref’d.) (holding that because supporting affidavit

demonstrated reasonable grounds for believing jury misconduct occurred,

trial court abused discretion by failing to conduct hearing).       In order to

prevent such fishing expeditions, not only must the movant for a hearing on

a new trial motion raise matters which are not determinable from the

record, the applicant must establish reasonable grounds showing that the

defendant could potentially be entitled to relief. See Smith, 286 S.W.3d at

338; Hobbs v. State, 298 S.W.3d 193 (Tex. Crim. App. 2009) (holding that

reasonable grounds showing is designed to prevent “fishing expeditions”. If

the trial court finds that the defendant has met the criteria for a hearing on a

new trial motion, the court abuses its discretion in failing to hold a hearing.

See Smith, 286 S.W.3d at 340; Hobbs, 298 S.W.3d 193 (holding that when

defendant raised single claim stating supporting facts he did not

intentionally relinquish his right to jury trial, no fishing expedition was

involved and trial judge abused discretion in refusing to hold hearing).

      Appellant’s motion for new trial stated, among other things:

      (1) the verdict in this cause is contrary to the law and the
      evidence. Count 1 and Count 3 are factually intertwined. Both
                                       5
      counts revolve around the credibility of the victim witness. The
      jury chose not to believe the victim in Count 3, but chose to
      believe her in Count 1. The inconsistent verdicts tend to show
      that the verdict was contrary to the evidence.

      (2) the trial court has the discretion to grant a new trial in the
      interest of justice, as the Court of Criminal Appeals has held in
      State v. Gonzalez, 855 S.W.2d 692, 693 (Tex. Crim. App. 1993)
      and Mullins v. State, 37 Tex. 337, 339-340 (1872-73)…

(C209-220).

      During the trial of this cause, and outside the presence of the jury, the

trial court considered Mr. Vega’s proffer that during his attorney’s cross

examination of                , Dulce Carreon and Margarita Bernal bore

witness to Claudia Trevino (a complainant against Mr. Vega in an unrelated

case) coach                 on how to answer Mr. Vega’s counsel’s cross

examination questions, by nodding her head up and down, or moving her

head up and down. The trial court responded as follows: “I was looking and

didn’t notice.” The trial court accepted Mr. Vega’s proffer and stated: “even

assuming if it is correct, your motion for mistrial is denied.”

      In response to the Appellant’s first issue, this Court held:

      Because the issue of witness-coaching was already brought to
      the trial court’s attention during trial and preserved through the
      trial court’s ruling on Vega’s motion for mistrial, we conclude
      that this matter is determinable from the record and was
      sufficiently addressed by the trial court. Accordingly, the trial
      court did not abuse its discretion by denying a hearing on
      Vega’s motion for new trial based upon the Carreon and Bernal
      affidavits. See TEX. R. APP. P. 21.2 (noting that a motion for
                                        6
     new trial is a prerequisite to presenting an issue on appeal only
     when necessary to adduce facts not in the record); Smith, 286
     S.W.3d at 338.

     The remaining two affidavits appear to attack J.C.’s credibility
     and character. Padilla’s affidavit states that she is J.C.’s cousin
     and that even though J.C. is twelve years old, Padilla saw J.C.
     drink “a Jello shot at a party” and that she also saw a bottle of
     vodka inside J.C.’s bedroom. Padilla also stated that J.C. would
     “sneak out” of her house late at night and go to the neighbor’s
     house. Padilla further asserted that J.C. told her about a
     teenaged boy in the neighborhood named George that J.C.
     wanted to engage in sexual intercourse. Padilla further stated in
     her affidavit that J.C. told her that J.C.’s friends thought that she
     was pregnant. B.V., who is also related to J.C., asserted in his
     affidavit that one day when he and J.C. walked to a
     neighborhood store, she pointed to a house where a teenaged
     boy lived. According to B.V., J.C. stated that the boy told her
     that whenever she came to his house, J.C. was supposed to
     “bring condoms” with her.

     While the matters asserted in the Padilla and B.V. affidavits are
     not determinable from the record, in order to be entitled to a
     hearing on a motion for new trial, the defendant must establish
     the existence of reasonable grounds showing that the
     defendant could be entitled to relief. See id. at 339. After
     reviewing his motion for new trial and briefing on appeal, we do
     not see any arguments based upon the Padilla and B.V.
     affidavits that establishes the existence of reasonable grounds
     that would entitle Vega to a new trial. The Padilla and B.V.
     affidavits are attacks on complainant’s reputation, which is
     inadmissible under the rules of evidence. See TEX. R. EVID.
     412. Therefore, we hold that the trial court did not abuse its
     discretion by denying a hearing on Vega’s motion for new trial
     based upon the Padilla and B.V. affidavits.

     The appellate court expected Appellant to establish a prima facie

case in the affidavit; however, setting forth a primie facie case is not

                                      7
necessary. See Reyes, 849 S/W/2d at 816. The evidence contained in

Appellant’s motion for new trial established reasonable grounds that show

that Appellant was potentially entitled to relief. The relief that the Appellant

would be entitled to is that without the coaching of the child witness, the

jury would hear a more clear picture of her credibility. The child witness

was the only evidence presented at trial that implicated the Appellant. The

jury obviously believed her over any other testimony presented at trial. A

hearing on the Appellant’s motion for new trial would have developed this

evidence further.    The witnesses who observed the coaching of the

testifying child witness would have testified as to what they saw. The Trial

Court would have been able to assess more clearly what the situation.

      Claudia Trevino’s conduct of coaching a child witness goes to the

very heart of Mr. Vega’s conviction. It affects the credibility of the child

witness,            . Without a full blown hearing on a motion for new trial,

Mr. Vega will not have the opportunity to fully develop prejudice and harm

for either a new trial if granted, or for the appeal of this cause. A hearing on

Mr. Vega’s motion for new trial would further develop witness testimony

from Dulce Carreon and Margarita Bernal as to the actions of Claudia

Trevino. A hearing on Mr. Vega’s motion for new trial would also allow full

development of the tampering charge, as well as fuller development into

                                       8
whether              was being pressured by other adults into bringing these

charges against Mr. Vega. It would also give Mr. Vega an opportunity to

compel the attendance of Ms. Trevino and                  to answer to not only

tampering charges, but also to the reasons for the tampering and the harm

and prejudice it played in Mr. Vega’s trial. Finally, a hearing on a motion for

new trial would develop the record to establish evidence that the child

victim was not as chaste in mind or past actions as the prosecutor led the

jury to believe. In fact, the child may have already been having sex with a

neighbor boy. (10R161-63). The State opened the door to allow this

testimony by eliciting from Nurse Garza that                had never had sex

before, therefore she did not examine her with a speculum. (10R90). Lastly,

a full hearing on Mr. Vega’s motion for new trial would allow the trial court

to hear this evidence and grant a new trial “in the interest of justice.”

      As a result of the foregoing, this Court of Appeals erred in failing to

remand this case to the Trial Court for a hearing on Appellant’s motion for

new trial.




                                        9
       ISSUE NO. 2: Whether the evidence is legally insufficient to
       support the verdict and judgment in this case.1

       The legal sufficiency standard is, “whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt.” Johnson v. State, 364 S.W.3d 292, 293-94 (Tex. Crim. App. 2012)

quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Brooks v.

State, 323 S.W.3d 893, 898-99 (Tex. Crim. App. 2010). The fact-finder is

the exclusive judge of the credibility of witnesses and of the weight to be

given to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref'd) (citing Lancon v. State, 253

S.W.3d 699, 707 (Tex. Crim. App. 2008)). Reconciliation of conflicts in the

evidence is within the fact-finder's exclusive province. Id. (citing Wyatt v.

       1
           Mr. Vega requests that this Court follow its own stare decisis of factual sufficiency
analysis like made in Martinez v. State, 198 S.W.3d 36 (Tex. App.—Corpus Christi 2006, no
pet.) and find the jury verdict to be a miscarriage of justice, and conclude that the proof of guilt,
although adequate if taken alone, is greatly outweighed by contrary proof.
         It should be noted that in Tibbs v. Florida, 457 U.S. 31(1982), the Court held the Double
Jeopardy Clause of Amends. V and XIV, United States Const., does not bar retrial, where the
initial “rare reversal” rested on a finding the conviction was against the great weight of the
evidence). The Tibbs court shows how in Florida a reversal based on factual evidential weight is
so different from a reversal stemming from legally insufficient evidence to convict. Id., at 35-47.
See In re M.P.A., 364 S.W.3d 277, 284 n. 6 (Tex. 2012) (holding that the Texas Constitution art.
V, § 6(a) (stating that courts of appeals’ decisions are conclusive on all questions of fact)
prohibits our Court from engaging in factual sufficiency review); Matlock v. State, 392 S.W.3d
662, 671 (Tex. Crim. App. 2013) (holding that to evaluate factual sufficiency, the Court of
Appeals must consider the entire body of evidence in a neutral light to determine whether the
jury findings were so "against the great weight and preponderance" of the evidence as to be
manifestly unjust).

                                                 10
State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). The reviewing court must

resolve any inconsistencies in the testimony in favor of the verdict. Id.

(citing Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).

     The victim identified the appellant by hair only at trial. 10R30. The

Court of Appeals relied on hearsay testimony by the officer who testified

that when he interviewed the victim, she identified the appellant by the pink

and black shirt that he was wearing. In Brooks v. State, 323 S.W.3d 893,

894 (Tex. Crim. App. 2010) the Texas Court of Criminal Appeals held that

on elements that the State has the burden to prove beyond a reasonable

doubt, the reviewing court reviews both a legal sufficiency challenge and a

factual sufficiency challenge under the same Jackson v. Virginia sufficiency

standard. See Jackson v. Virginia, 433 U.S. 307, 318–19 (1979); Ervin v.

State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet ref’d).

                 was extremely inconsistent in her own testimony. First

she testified that she went to sleep in her house after popping fireworks

and that her brother was there when she went to bed. (10R26). After

prompting from the DA, she testified that she and her brother watched a

little TV and then she went to bed. (10R27). Then she testified that they

were watching a movie (Tintin) around 1:00-2:00 a.m.        Her brother fell

asleep so             turned off the TV and she fell asleep. (10R28). Then

                                     11
she testified that her brother fell asleep on the couch and she went to sleep

in her bed. (10R29).

      Second,              testified that she always locks the door of her

room or the house. (10R14). She testified she locked the door. (10R29).

She later testified that there is no door to her bedroom. (10R50).

      Third,             testified that she knew it was Mr. Vega because

she could see his hair cut from the light coming through the window.

           did not testify that she saw his facial features, or that she heard

his voice, or that she recognized his body structure. She did not testify that

Mr. Vega had unique hair that she could never forget such a Mohawk or a

long pony tail. This Court can take judicial notice of the fact that Mr. Vega,

a Hispanic man, probably has the same hair color and style as 99.9% of

the Hispanic male population in Hidalgo County. If there was sufficient light

shining in from the windows from the trucks at the next door party, why

couldn’t            clearly see the face of the perpetrator and not just his

hair? To convict on this shabby evidence is no different than convicting on

the basis of junk science. For example, dog scent line-ups, a practice that

the Texas Innocence Project calls “down home voodoo” and which has

resulted in the wrongful conviction of multiple people, is now considered

“junk science,” also resulting in the dismissal of many cases by the

                                      12
prosecutor’s office.2 See Winfrey v. State, 323 S.W.3d 875 (Tex. Crim.

App. 2010).

       Mr. Vega submits that this Court must find that the requisite jury

findings were against the great weight of the credible evidence under the

circumstances of this record; and that there is factually insufficient evidence

to convict, for the great weight of the credible evidence shows:

       (1) there is nothing notable in Nurse Garza’s report other than the

healed tear and                      statements.

       (2) Mr. Vega and his wife Dominga’s supply an alibi of where Mr.

Vega was that entire evening and early morning. There was a barbeque

occurring across the street at an uncle’s house. (10R120). Mr. Vega gave

permission to the kids to go to the uncle’s barbeque. (10R120). Mr. Vega

and Dominga stayed on the porch (10R120, 138). Mr. Vega was with

Dominga the entire time. (10R142). Dominga did not see Mr. Vega go to

the back of the house to try to have sex with                           between the hours

of 10:00 p.m. to 2:00 a.m. (10R142).

       (3) Mr. Vega believes that                        concocted this whole thing up

because she was upset upon finding out that Mr. Vega was her father.


       2
        See http://www.nbcdfw.com/news/local/Scent-IDs-Lineups-Are-Junk-Science-
Innocence-Project-59803817.html which describes the practice in the past and the current veer
away from that practice today.
                                              13
(10R126). Mr. Vega wants to give her the same as he does his other kids,

but he hasn’t been able to. (10R126).

      (4) Bernardo Cervantes (Dominga’s nephew who had a headache)

and             went to the back room to sleep.      (10R139).   Valentine

Cervantes, Jr. and Julian Vega, Jr. went to the back area, outside the door

to the back room where             stated the assault occurred. (10R140).

In this area, there exists gym equipment and a boxing punching bag.

(10R140). After returning from the Uncle’s house, they stayed outside the

back room until about 4:00-5:00 a.m.     (10R166). Julian Vega, Jr. was

outside              door when she went to bed. (10R168). During the

time that Julian Vega, Jr. was outside the back part of the house where

            stays, no one entered (10R169) or exited the back room.

(10R172).

      A reviewing court must measure the sufficiency of the evidence by

the elements of the offense as defined by a hypothetically correct jury

charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009)

(citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a

charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State's burden of proof or

unnecessarily restrict the State's theories of liability, and adequately

                                    14
describes the particular offense for which the defendant was tried. Id.; see

also Gonzalez v. State, No. No. 06-12-00117-CR, 2013 Tex. App. LEXIS

9385, **4–7 (Tex. App.—Corpus Christi July 29, 2013). A person commits

an offense aggravated sexual assault (1) if the person (2) intentionally or

knowingly (3) causes the penetration of the sexual organ of a child under

fourteen by any means. TEX. PENAL CODE ANN. § 22.021(a) (1) (B) (i).

       Legal insufficiency is a question of law comprising the minimum

standard for comporting with federal due process.3                    Because there is no

greater "manifest injustice" than to send a person to prison whose guilt has

not been established beyond a reasonable doubt,4 the Due Process Clause

of the Fourteenth Amendment to the United States Constitution requires

every state conviction be supported by the requisite evidence beyond a

reasonable doubt.5            Tex. Pen. Code § 2.01 (Vernon 1997) contains the

same requirement.6

       The State failed to prove the first element—that Mr. Vega is the one

that committed the act of aggravated sexual assault and the Court of

       3
        Clewis v. State, 922 S.W.2d at 131-134.
       4
        Johnson v. State, 978 S.W.2d 703, 707 (Tex.App.─Corpus Christi 1998), aff'd, 23 S.W.2d
1 (Tex.Cr.App. 2000).
       5
          In re Winship, 397 U.S. 358, 362-364, 90 S.Ct. 1068, 1071-1073, 25 L.Ed.2d 368 (1970);
Coit v. State, 808 S.W.2d 473, 475 (Tex.Cr.App. 1991); Long v. State, 7 S.W.3d 316, 317-318
(Tex.App.─Beaumont 1999, no pet.).
       6
           Long, 7 S.W.3d at 318.
                                               15
Appeals committed error when it so affirmed.                So questionable is

              identification of Mr. Vega—by his hair cut—that it does not

support the verdict or judgment in this case.                  testified that she

knew it was Mr. Vega because she could see his hair cut from the light

coming through the window.                     did not testify that she saw his

facial features, or that she heard his voice, or that she recognized his body

structure. She did not testify that Mr. Vega had unique hair that she could

never forget such a Mohawk or a long pony tail. She did not testify that Mr.

Vega wore a pink and black shirt.           In the light most favorable to the

prosecution, no rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Further, it is manifestly

unjust to send Mr. Vega to prison for 18 years on the basis that

identified him by his hair cut. As such, Mr. Vega requests that this Court

reverse the judgment in this case and enter a judgment of acquittal.

      Prayer: Wherefore, Appellant prays that this Court the set aside the

judgment of the trial court and the decision of the appellate court, and

remand this case back to the trial court for a new trial.




                                       16
                                    Respectfully submitted,

                                    Law Office of Victoria Guerra
                                    320 W. Pecan Blvd.
                                    McAllen, Texas 78501
                                    (956) 618-2609
                                    (956) 618-2553 (facsimile)

                              By:   /s/ Victoria Guerra
                                    Victoria Guerra
                                    State Bar Number: 0857900
                                    Appellate Attorney for Appellant

                        CERTIFICATE OF SERVICE

      On this 2nd day February, 2015, the undersigned delivered a copy of

the foregoing Appellant’s brief to Appellee’s Counsel Assistant Criminal

District       Attorney,        Luis         Gonzalez             via    email:

luis.gonzalez@da.co.hidalgo.tx.us

                                            /s/ Victoria Guerra
                                            Victoria Guerra



                    CERTIFICATION OF COMPLIANCE

      In compliance with TRAP 9, the undersigned certifies that the number

of words in this brief, excluding those matters listed in Rule 9.4 is 3,758.

                                    /s/ Victoria Guerra
                                    Victoria Guerra




                                       17
                            NUMBER 13-13-00126-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JULIAN HOMERO VEGA,                                                        Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 332nd District Court
                         of Hidalgo County, Texas.


                       MEMORANDUM OPINION
             Before Justices Rodriguez, Garza, and Benavides
               Memorandum Opinion by Justice Benavides

      By six issues, which we reorganize and address as four, appellant

Julian Homero Vega appeals his conviction for aggravated sexual assault of a child

younger than fourteen years of age, a first-degree felony.   See TEX. PENAL CODE ANN. §

22.021 (West, Westlaw through 2013 3d C.S.). Vega asserts that (1) the evidence is
legally insufficient to sustain his conviction; (2) the trial court erred by allowing his motion

for new trial to be overruled by operation of law; (3) the trial court committed reversible

error by admitting testimony pertaining to the credibility of the complainant, J.C.1; and (4)

the trial court erred by excluding impeachment testimony regarding J.C.’s prior sexual

knowledge. We affirm.

                                             I.       BACKGROUND

         A Hidalgo County grand jury indicted Vega on two counts of aggravated sexual

assault of a child younger than fourteen years of age, see id., and one count of

indecency with a child by contact. See id. § 21.11 (West, Westlaw through 2013 3d

C.S.).       Vega was tried before a Hidalgo County jury, and the record reveals the

following facts:

         In early January 2012, a parent in the La Joya Independent School District alerted

school officials that J.C., one of her daughter’s friends, told her daughter that she was

being sexually abused at home.                    Officials called J.C. into the school’s office for a

conference with the school’s principal, supervisor, and counselor. School counselor

Cruz Alvarez testified that she was present at the meeting with J.C. and that J.C. made

an outcry of abuse at home by Vega, her uncle.                      According to Alvarez, J.C. told the

school officials that the abuse took place over the preceding New Year’s holiday.

Alvarez stated that the authorities were then called to the school, including persons from

Child Protective Services, the La Joya ISD Police Department, and the Hidalgo County

Sheriff’s Office.




         1   Because she is a minor, we will identify the complainant only by her initials.

                                                         2
      Hidalgo County Sheriff’s Deputy Bobby Barron responded to the outcry call at the

school. Deputy Barron testified that he spoke to J.C. that day, and J.C. reported sexual

abuse by Vega.     Deputy Barron testified that J.C. told him that Vega entered her

bedroom as she slept in the early morning hours of New Year’s Day 2012, forced himself

on top of her, and put his penis inside of her vagina.   According to Deputy Barron, J.C.

identified Vega by his haircut and a “pink and black shirt” that he wore that night.

Deputy Barron testified that an investigator from the Hidalgo County Sherriff’s Office was

dispatched to the school for further handling of the case.

      After the outcry was made, Hidalgo County Sheriff’s Investigator Miguel Lopez

took over the investigation of this case.    According to Investigator Lopez, J.C. was

taken to the Child Advocacy Center to be interviewed by a forensic examiner.

Investigator Lopez stated that he watched the forensic interview in its entirety.

According to Investigator Lopez, J.C. told the examiner that, following the sexual contact

with Vega, it hurt when she urinated.   J.C. was then sent to Mission Regional Medical

Center for a medical examination.

      Evonne Garza, a sexual abuse nurse examiner and Mission Regional Medical

Center’s Forensic Program Coordinator, testified that she conducted a sexual abuse

examination of J.C.    Nurse Garza testified that J.C. reported abuse by Vega.     Nurse

Garza’s examination revealed a “healed tear” on J.C.’s hymen at “6:00.” According to

Nurse Garza, the hymen is the “circular tissue that goes around the opening of the

entryway of the vagina.” Nurse Garza further explained that a “healed tear” means that

a tear is present and has already healed or was in the process of healing.   Nurse Garza

stated that tears in the vaginal area heal quickly, usually “within a couple of days.”


                                            3
Finally, Nurse Garza testified that the location of the tear was “consistent” with the

history given by J.C. and that the tear appeared to be “more of a penetrative injury.”

       J.C. also testified.   According to J.C., she and her family used to live in a home

on the same property as Vega.         J.C. recalled three separate incidents of abuse by

Vega. The first incident took place in November 2011, when she was home alone and

Vega entered her house drunk.       According to J.C., she pretended to be asleep that day

so that Vega would leave her alone.       Instead, Vega forcibly removed J.C.’s pants and

“started to touch [her]” “with his fingers.”       J.C. testified that Vega made her feel

“uncomfortable” that day.     J.C. stated that Vega told her afterward not to tell anyone

about what had happened and that he would buy her clothes.           J.C. recounted a second

incident that took place in December 2011. According to J.C., Vega tried to enter her

home, and J.C. recalled that she hid from Vega in a pile of clothes.         Eventually Vega

entered the home and began looking for her.

       The final incident took place in the early morning hours of New Year’s Day 2012.

According to J.C., she and her family members had a party at their home, in which they

ate food and popped fireworks to celebrate the New Year.              Vega was also at the

gathering that night drinking beer. After they finished setting off the fireworks, J.C. went

inside her house to go to sleep.      She recalled that her father left that evening to go to

work, while her other family members cleaned up after the party.         J.C. and her brother

entered the home around 1 or 2 o’clock in the morning and watched a cartoon on the

couch before they both fell asleep.     J.C. stated that she turned off the television, left her

brother sleeping on the couch, and went to her bed to sleep.       J.C. then recalled that she

heard someone trying to open the door to her house, but the noise stopped. The noise


                                               4
later resumed, the door opened, and J.C. identified the person who opened the door as

Vega.    J.C. testified that she knew it was Vega because he had received a haircut that

day, and she identified Vega by his haircut. J.C. also recalled that Vega was “drunk”

and wore blue plastic gloves that night.   J.C. testified that Vega then took off his pants

as well as her pants and held her arms down as he got on top of her as she lay in the

bed.    J.C. stated that Vega began to move “up and down” and inserted his “private part”

inside of her “private part.”      According to J.C., Vega’s actions made her feel

“uncomfortable” and “shocked.” After Vega finished, he stayed with her for a short

period of time and then got off the bed and left.   J.C. testified that she urinated after the

encounter and that it burned to urinate.    Later that morning, J.C. tried to wake up her

brother to tell him what had happened, but her brother did not wake up.        J.C. admitted

that she never told her father about what had happened because she was scared.           J.C.

stated that she eventually told her friend from school about the abuse because she

“wanted at least someone to know, just one person.”

        Several witnesses testified in Vega’s defense.       The first was Vega’s niece,

Cecilia Carreon, who claimed that Vega is actually J.C.’s father. Carreon testified that

unidentified individuals attempted to make deals with Vega prior to trial, including an

attempt to induce him to sign over a car title in exchange for J.C. dropping any charges

against him.   Carreon admitted that she was not present at the home during the New

Year’s Day 2012 party.

        Vega also testified.   According to Vega, he is J.C.’s biological father. Vega

admitted to being at the same gathering on New Year’s Eve, drinking beer and eating

tamales with his wife, but he denied having any sexual encounter with J.C.              Vega


                                             5
testified that he thinks that J.C. was affected by learning that Vega was her biological

father.       Vega admitted to having a drinking problem.

          After the State rested, it abandoned the indecency with a child charge, but moved

forward with prosecution of the two counts of aggravated sexual assault.                         The jury

found Vega guilty of aggravated sexual assault of a child as alleged in count one of the

indictment (the New Year’s Day 2012 incident) and acquitted him of aggravated sexual

assault of a child as alleged in count three of the indictment.               The trial court accepted

the jury’s verdict and sentenced Vega to eighteen years’ imprisonment with the Texas

Department of Criminal Justice, Institutional Division.            This appeal followed.

                                  II.      SUFFICIENCY CHALLENGE

          By his second and third issues, Vega asserts that the evidence is insufficient to

sustain his conviction.2

          A. Standard of Review and Applicable Law

          We apply the standard articulated in Jackson v. Virginia to determine whether the

evidence is sufficient to support a criminal conviction.             443 U.S. 307, 319 (1979); see

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (holding that

the Jackson standard of review is the “only standard” that should be applied in a

sufficiency review).       Under Jackson, we examine the evidence in the light most


          2We note that by his second issue, Vega complains that the evidence is factually insufficient to
support the verdict and the trial court’s judgment, and by his third issue, Vega complains that the evidence
is legally insufficient to support the verdict and the trial court’s judgment. The Texas Court of Criminal
Appeals has held that there is “no meaningful distinction between the Jackson v. Virginia legal sufficiency
standard and the Clewis factual-sufficiency standard” and that the Jackson standard “is the only standard
that a reviewing court should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable doubt.” Brooks v.
State, 323 S.W.3d 893, 902 – 03, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). Accordingly, we will review Vega’s claims of evidentiary sufficiency under a
“rigorous and proper application” of the Jackson standard of review as legal sufficiency issues. Id. at
906–07, 912.

                                                     6
favorable to the verdict to determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.        443 U.S. at 319.

         The elements of the offense are measured as defined by a hypothetically correct

jury charge.    Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).      Such a charge is one that

accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of

liability, and adequately describes the particular offense for which the defendant was

tried.   Id.

         Under a hypothetically correct jury charge, as authorized by the indictment in this

case, Vega is guilty of aggravated sexual assault of J.C. if he intentionally or knowingly

caused the penetration of J.C.’s sexual organ by Vega’s sexual organ and that J.C. was

younger than fourteen years of age at the time of the incident.       See TEX. PENAL CODE

ANN. § 22.021.

         We defer to the jury's determinations of credibility and weight to be given to the

evidence because jurors are the sole fact-finders.     See Brooks, 323 S.W.3d at 899; see

also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West, Westlaw through 2013 3d C.S.) (“The

jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given

to the testimony. . . .”).   Each fact need not point directly and independently to Vega’s

guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to

support the conviction.      Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

Circumstantial evidence is as probative as direct evidence in establishing the guilt of an

actor, or party status, and circumstantial evidence alone can be sufficient to establish


                                              7
guilt.   See Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012); Hooper, 214

S.W.3d at 13. The testimony of a child sexual abuse victim alone is sufficient to support

a conviction for aggravated sexual assault.      See Gonzalez Soto v. State, 267 S.W.3d

327, 332 (Tex. App.—Corpus Christi, no pet.) (internal citations omitted). Courts give

wide latitude to testimony given by child victims of sexual abuse.        Id. The victim's

description of what happened to her need not be precise, and she is not expected to

express herself at the same level of sophistication as an adult.    Id. Finally, there is no

requirement that the victim's testimony be corroborated by medical or physical evidence.

Id.

         B. Discussion

         Vega specifically argues that the State failed to prove that Vega is the one who

committed the act of aggravated sexual assault. We disagree.

         J.C. testified that she was able to identify Vega on the night in question because

he had received a haircut earlier that day and that she was able to view Vega’s haircut in

the bedroom through the next door neighbor’s lights that shined through her window,

which illuminated Vega’s head.        Vega contends that this testimony is insufficient,

however, because J.C. “did not testify that she saw [Vega’s] facial features, or that she

heard his voice, or that she recognized [Vega’s] body structure.” Furthermore, Vega

argues that J.C. did not point out that Vega sported “unique hair” such as a “Mohawk” or

“long pony tail” to distinguish him from others. Even assuming without deciding that

J.C.’s identification-by-haircut was insufficient, Deputy Barron testified that during his

investigation, J.C. identified Vega as the perpetrator not only by his haircut, but also by

the “pink and black shirt” that he wore that night.   Moreover, J.C. and her family lived in


                                             8
a home next door to Vega’s home, and while Vega’s biological relationship to J.C. was

questioned at trial, the evidence is clear that Vega was not a stranger to J.C.                         In our

review of the sufficiency of the evidence, we are required to defer to the jury's credibility

and weight determinations because the jury is the sole judge of a witness’s credibility

and the weight to be given to her testimony.                See Brooks, 323 S.W.2d at 899. Thus,

considering the evidence of Vega’s haircut as well as other circumstantial evidence

surrounding his relationship with J.C. as neighbors and family members, we defer to the

jury’s determination that J.C. sufficiently identified Vega as the perpetrator.

        Accordingly, after viewing the evidence in the light most favorable to the verdict,

we conclude that a rational trier of fact could have found beyond a reasonable doubt that

Vega was the perpetrator of the aggravated sexual assault of J.C. We overrule Vega’s

second and third issues.

                        III.     HEARING ON VEGA’S MOTION FOR NEW TRIAL

        By his first issue, Vega asserts that the trial court erred in allowing his motion for

new trial to be overruled by operation of law when the motion raised matters that were

not determinable from the record and Vega did not waive his attendance at said

hearing.3

        A. Standard of Review and Applicable Law

        A hearing on a motion for new trial serves a two-fold purpose:                      (1) permits the

trial court to decide whether the cause shall be retried and (2) prepares a record for

presenting issues on appeal in the event the motion is denied.                        Smith v. State, 286

S.W.3d 333, 338 (Tex. Crim. App. 2009). Despite the recognition that the opportunity to

        3  We construe this issue as a complaint about the trial court’s failure to hold a hearing on his motion
for new trial and will analyze it as such.

                                                       9
prepare a record for appellate review makes a hearing on a motion for new trial a critical

stage, the holding of such a hearing is not an absolute right and is not required when the

matters raised in the motion for new trial are subject to being determined from the record.

See id.   However, a trial court abuses its discretion in failing to hold a hearing on a

motion for new trial when that motion raises matters which are not determinable from the

record, because to hold otherwise would deny the accused of meaningful appellate

review.   See id.

       But even if a defendant has raised matters that are not determinable from the

record, the defendant is not entitled to a hearing on his motion for new trial unless he

establishes the existence of reasonable grounds showing that the defendant could be

entitled to relief.   See id. at 339 (citations omitted).         Thus, as a prerequisite to a

hearing when the grounds in the motion are based on matters not already in the record,

the motion must be supported by an affidavit, either of the defendant or someone else,

specifically setting out the factual basis for the claim.           Id.   The affidavit need not

establish a prima facie case, or even reflect every component legally required to

establish relief. Id. Rather, the affidavit is sufficient if a fair reading of it gives rise to

reasonable grounds in support of the claim.            Id.   However, conclusory affidavits and

those affidavits unsupported by facts do not provide requisite notice of the basis for the

relief claimed; thus, no hearing is required.    Id.

       We review a trial court’s denial of a hearing on a motion for new trial for an abuse

of discretion.   See id at 339. We will reverse only when the trial court’s ruling was so

clearly wrong as to lie outside the zone of reasonable disagreement.               See id.   Our

review is limited to the trial court’s determination of whether a defendant has raised


                                                10
grounds that are both undeterminable from the record and reasonable, meaning they

could entitle the defendant to relief.             Id. at 340.      If the trial court finds that a defendant

has met the criteria, he has no discretion to withhold a hearing, and such a failure to hold

a hearing after an affirmative finding amounts to an abuse of discretion.                    Id.

        B. Discussion

        Here, Vega asserted two grounds in support of his motion for new trial: (1) that

the verdict is contrary to law and evidence; and (2) that a new trial should be granted in

the interest of justice. In further support of his motion, Vega attached four separate

affidavits from Dulce Carreon, Margarita Bernal, Magda Karina Padilla, and B.V.4

        Carreon and Bernal’s affidavits related to the portion of the trial in which J.C.

testified.     Carreon and Bernal’s affidavits state that they each witnessed a woman

named Claudia Treviño enter the courtroom while J.C. testified and that Treviño coached

J.C.’s testimony by the use of various head signals.                      This same issue was brought to

the trial court’s attention at trial. Specifically, Vega’s trial counsel proferred the same

substantive testimony, as told to him by Carreon and Bernal, regarding Treviño’s alleged

coaching of J.C.; Vega’s trial counsel moved for a mistrial based upon these allegations.

The trial court then made the following observation and ruling:

        . . . . I was looking and I didn’t notice—notice this, . . . truthfully. I saw the
        witness sitting there. If there was a nodding of the head, it was not an
        overt—obvious overt and obvious coaching of the witness.

        If you’ll notify me if she is here again, I’ll instruct the bailiff to have her move
        so that she doesn’t face the witness, but I’ll accept your—that would be the
        testimony and the proffer . . . .




        4   Due to this affiant’s age (12), we will identify him only by his initials.

                                                          11
       But even if, assuming what you are saying is correct, that that’s what they
       would say, the Motion for Mistrial is denied.

       Because the issue of witness-coaching was already brought to the trial court’s

attention during trial and preserved through the trial court’s ruling on Vega’s motion for

mistrial, we conclude that this matter is determinable from the record and was sufficiently

addressed by the trial court. Accordingly, the trial court did not abuse its discretion by

denying a hearing on Vega’s motion for new trial based upon the Carreon and Bernal

affidavits.   See TEX. R. APP. P. 21.2 (noting that a motion for new trial is a prerequisite to

presenting an issue on appeal only when necessary to adduce facts not in the record);

Smith, 286 S.W.3d at 338.

       The remaining two affidavits appear to attack J.C.’s credibility and character.

Padilla’s affidavit states that she is J.C.’s cousin and that even though J.C. is twelve

years old, Padilla saw J.C. drink “a Jello shot at a party” and that she also saw a bottle of

vodka inside J.C.’s bedroom.       Padilla also stated that J.C. would “sneak out” of her

house late at night and go to the neighbor’s house. Padilla further asserted that J.C.

told her about a teenaged boy in the neighborhood named George that J.C. wanted to

engage in sexual intercourse.      Padilla further stated in her affidavit that J.C. told her that

J.C.’s friends thought that she was pregnant. B.V., who is also related to J.C., asserted

in his affidavit that one day when he and J.C. walked to a neighborhood store, she

pointed to a house where a teenaged boy lived.         According to B.V., J.C. stated that the

boy told her that whenever she came to his house, J.C. was supposed to “bring

condoms” with her.




                                               12
       While the matters asserted in the Padilla and B.V. affidavits are not determinable

from the record, in order to be entitled to a hearing on a motion for new trial, the

defendant must establish the existence of reasonable grounds showing that the

defendant could be entitled to relief.    See id. at 339. After reviewing his motion for new

trial and briefing on appeal, we do not see any arguments based upon the Padilla and

B.V. affidavits that establishes the existence of reasonable grounds that would entitle

Vega to a new trial.      The Padilla and B.V. affidavits are attacks on complainant’s

reputation, which is inadmissible under the rules of evidence.        See TEX. R. EVID. 412.

Therefore, we hold that the trial court did not abuse its discretion by denying a hearing on

Vega’s motion for new trial based upon the Padilla and B.V. affidavits.

       Vega’s first issue is overruled.

                               IV.       BOLSTERING TESTIMONY

       By his fourth issue, Vega asserts that the trial court reversibly erred by allowing

testimony which improperly bolstered J.C.’s testimony.

       A. Standard of Review and Applicable Law

       A trial court’s decision on whether to admit evidence is reviewed under an abuse

of discretion standard and will not be reversed if it is within the zone of reasonable

disagreement.     Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (citations

omitted).   An abuse of discretion occurs when the trial court acts arbitrarily or

unreasonably, without reference to guiding rules or principles.        Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (en banc). The inquiry on appeal is

whether the result was reached in an arbitrary or capricious manner.         Id. We afford a

trial court “great discretion” in its evidentiary decisions because “the trial court judge is in


                                               13
a superior position to evaluate the impact of the evidence.”        Id. at 378–79.   If we

conclude that the trial court abused its discretion, we must then evaluate the error for

harm. See TEX. R. APP. P. 44.2(b).

       A direct opinion on the truthfulness of the child, from either a lay witness or an

expert witness, is inadmissible.       Cueva v. State, 339 S.W.3d 839, 867 (Tex.

App.—Corpus Christi 2011, pet. ref’d) (citing Yount v. State, 872 S.W.2d 706, 708 (Tex.

Crim. App. 1993) (en banc)); see Sessums v. State, 129 S.W.3d 242, 247 (Tex.

App.—Texarkana 2004, pet. ref’d); Fisher v. State, 121 S.W.3d 38, 41–42 (Tex.

App.—San Antonio 2003, pet. ref’d). This type of testimony is inadmissible “because it

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.”   Fisher, 121 S.W.3d at 41 (citing Yount, 872

S.W.2d at 709).

       B. Discussion

       Vega specifically complains about the following line of questioning to Investigator

Lopez related to J.C.’s Child Advocacy Center interview:

       [Prosecutor]:               Have you ever watched, I guess, a videotaped
                                   interview where you kind of get a feeling that
                                   maybe something else is going on, that the
                                   child is lying?

       [Investigator Lopez]:       Yes.

       [Prosecutor]:               That has happened to you before?

       [Investigator Lopez]:       Yes, sir.

       [Prosecutor]:               Why was this different?




                                               14
[Defense Counsel]:       I am going to object, Your Honor, for a
                         determination on whether if someone is lying.
                         It’s not a factual question.

The Court:               This is an ultimate jury issue. It invades the
                         province of the issue.       The objection is
                         sustained.

[Prosecutor]:            Investigator, there was—there is a reason that
                         you decided to file charges in this case; is that
                         correct?

[Investigator Lopez]:    That’s correct.

[Prosecutor]: What were those reasons?

[Investigator Lopez]:    One, we had the consistency of the preliminary
                         report with the forensic interview, what was told
                         to the sexual assault examiner who was the
                         one that conducts the sexual assault exam at
                         the hospital, because there is also a statement
                         made to her.            That was consistent
                         with—throughout the investigation.

                         The—plus the physical findings that were found
                         on the sexual assault examination.

[Prosecutor]:            So, Investigator, I guess you kind of jumped
                         ahead there. There was another exam that
                         she had?

[Investigator Lopez]:    Yes.

[Prosecutor]:            Is that—that was the one at the hospital that we
                         talked about [?]

[Investigator Lopez]:    That was done at the hospital, correct.

[Prosecutor]:            Do you know who was [sic] the person that
                         conducted that exam?




                                  15
[Investigator Lopez]:   Evonne Lopez [sic] is a forensic nurse at the
                        Mission Hospital.

                        ....

[Prosecutor]:           And would there be times in your cases where
                        you flag—not flag, but tell Evonne to double
                        check her stories or anything like that?

[Defense Counsel]:      I am going to object to the relevance, Your
                        Honor.

The Court:              It’s overruled.   Overruled.

[Prosecutor]:           In your experience would you ever have
                        Evonne—

[Investigator Lopez]:   The—the—I would express concerns that I had
                        with the investigation to her but, ultimately she
                        is the one that determines what she finds and
                        then she has to give her opinion because, of
                        course, she has to back up her opinion in court
                        if it needs to come to court.

                        Whenever she had concerns, she would
                        express that to me.

[Defense Counsel]:      I am going to object to whatever another
                        witness’s concerns are, Your Honor, and—and
                        what the report is and her testimony.

The Court:              Okay.    Let’s move on here, Counsel.

                        ....

[Prosecutor]:           Did you have any concerns when you took her
                        to get—when you took [J.C.] to get interviewed
                        by Evonne.

[Investigator Lopez]:   There weren’t concerns regarding her
                        statement, no. I didn’t have any. She was
                        pretty consistent throughout the interview so I
                        didn’t have anything—have any concerns for
                        double checking her statements or anything like
                        that.


                                 16
[Prosecutor]:           So you felt pretty confident taking her over
                        there?

[Investigator Lopez]:   Yes.

                        ....

[Prosecutor]:           What specific, I guess, checks do you have
                        before you just arrest somebody off the street?

[Investigator Lopez]:   We have to—whenever we are doing the
                        investigation, one of the—one of the main
                        things or one of the priorities in the case is what
                        the child is stating.

                        When—and—and over the years you see how
                        a child will give statements, how consistent they
                        are. When they are talking, how they pause or
                        what they think, or how they move their eyes,
                        different body language.

                        And she was pretty thorough throughout. We
                        didn’t see any—anything where we were
                        concerned that she may be making things up,
                        things of that nature.

                        When we spoke to her dad—because those are
                        the ones that, you know, as parents they know
                        what kind of child they have and so on and so
                        forth. So we’ll talk to him, asked [sic] him
                        about her behavior or things of that nature.
                        One thing that he specifically said was that she
                        doesn’t lie. She wouldn’t make up something
                        like that.

                        And I spoke to her after the interview just to
                        confirm that everything that she said during the
                        interview was—was true.        And she pretty
                        much said, yes, it is true. So it wasn’t—I am
                        just—I don’t just take the forensic interview in
                        [sic] itself.




                                 17
       The State contends that Vega did not properly preserve error for appellate review.

We agree. As a general rule, the record must show that the complaint made on appeal

was timely made to the trial court “with sufficient specificity to make the trial court aware

of the complaint, unless the specific grounds were apparent from the context[.]”          See

Weeks v. State, 396 S.W.3d 737, 741 (quoting TEX. R. APP. P. 33.1).

       Vega lodged three objections during the complained-of testimony.               The first

objection was based upon the complaint on appeal—that is, whether Investigator

Lopez’s testimony invaded the province of the jury to determine issues of truthfulness

and credibility.    This objection was sustained by the trial court.         Vega’s second

objection was based on relevance grounds, and his third objection went to Investigator

Lopez’s testimony about what Nurse Garza’s concerns were during her examination of

J.C.   Both of these objections were overruled.     Vega also moved for a mistrial at the

conclusion of the State’s case-in-chief:

       [Defense Counsel]:          I would make, Judge, also a Motion for Mistrial
                                   based on the fact that they have elicited from
                                   the investigator and they tried through the
                                   counselor and they tried again with the—with
                                   the—the nurse, they tried to elicit whether this
                                   young lady was telling the truth or not and
                                   they—I think they invaded the jury’s province
                                   that they determine the truth and it—

       The Court:                  For future trials that’s grounds for a mistrial.

       [Defense Counsel]:          I know there is case law on it, Judge.

       The Court:                  There is a case and I am familiar with the case.
                                   But it’s grounds for mistrial for you to ask them
                                   that question.     And the questions weren’t
                                   answered and you properly objected and I ruled
                                   and I’ll deny your Motion for Mistrial.



                                             18
       Preservation of error is a systemic requirement of every appeal.      Moore v. State,

295 S.W.3d 329, 333 (Tex. Crim. App. 2009).       Of the three relevant objections lodged in

this case, only the first was on the basis asserted on appeal.     Thus, after reviewing the

record, we conclude that aside from Vega’s first objection, which was sustained by the

trial court by not allowing any opinion testimony regarding J.C.’s credibility, no other error

was preserved for any other portion of Investigator Lopez’s testimony now complained

about on appeal.    See TEX. R. APP. P. 33.1; Clark v. State, 365 S.W.3d 333, 339 (Tex.

Crim. App. 2012) (“The point of error on appeal must comport with the objection made at

trial.”) Vega’s fourth issue is overruled.



                              V.     EXCLUSION OF TESTIMONY

       By his remaining two issues, Vega asserts that his Confrontation Clause and due

process rights were violated when his counsel was prohibited from presenting a witness

who would have testified about J.C.’s prior sexual knowledge.

       A. Applicable Law and Standard of Review

       The right of a defendant to present witnesses in his behalf is not absolute, and is

subject to “established rules of procedure and evidence designed to assure both fairness

and reliability in the ascertainment of guilt and innocence.”   Keller v. State, 662 S.W.2d

362, 365 (Tex. Crim. App. 1984) (en banc) (quoting Chambers v. Mississippi, 410 U.S.

284, 302 (1973). We review a trial court’s ruling on allowing a witness to testify for an

abuse of discretion. See id.




                                             19
       B. Discussion

       Vega sought to call Magda Karina Padilla as a witness at trial. In a hearing

outside of the jury’s presence, Vega elicited the following relevant testimony from Padilla

as an offer of proof:

       [Defense Counsel]:          Magda, [J.C.] had several discussions with you
                                   about sex.

       [Padilla]:                  Yeah.

       Q.                          What—and what—what did he [sic] ask?

       A.                          Well, she asked me, once we were sitting in the
                                   front, and she told me she wanted to speak to
                                   me because I was the only girl like her age in
                                   there. And there is just boys so she would
                                   come to me.

                                   So then there was this one night that I was
                                   sitting in the front porch and she told me that if
                                   she could talk to me. So then I put my phone
                                   down and she was telling me that there was this
                                   little kid named George that was like on—it’s
                                   our street, on the next street. She was telling
                                   me that he wanted like to have sex with her and
                                   that she didn’t know what to do.

                                   And I told her, like, ma, you are like 11 years
                                   old. You are a little girl. That shouldn’t even
                                   like be—like you shouldn’t worry about that.
                                   She is a little kid like—and I told her just stay
                                   away from him and that—because he—there is
                                   [sic] little kids, they do a lot of drugs there. So
                                   I told her like just keep away from that, that’s all
                                   he wanted, like for her not to get close to him
                                   and that was it.

                                   Like after that she didn’t tell me anything else.

                                   ....




                                            20
           The State objected that the testimony was inadmissible hearsay and in violation of

rule of evidence 412.       See TEX. R. EVID. 412 (Evidence of Previous Sexual Conduct in

Criminal Cases). Vega responded by stating that the testimony is admissible “to refute

the fact that [she] has never—doesn’t know what sex is, she is innocent.” Vega’s

counsel further argued that Padilla’s testimony was for purposes of impeaching J.C.’s

testimony.      The trial court agreed with the State’s objections and did not allow Padilla to

testify.

           Vega argues on appeal that the trial court abused its discretion by ruling in the

State’s favor on this issue because he was deprived of a “meaningful opportunity to

present a complete defense.”          We disagree.     Vega’s right to call Padilla was not

absolute and was subject to the rules of evidence.           See Keller, 62 S.W.2d at 365.

Here, the trial court did not abuse its discretion by sustaining the State’s hearsay and

rule 412 objections because both applied to this case.

           First, hearsay is not admissible.     See TEX. R. EVID. 802.       “Hearsay” is a

statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.            See id. R. 801(d).

Padilla’s proffered testimony primarily centered on what J.C. told her regarding a boy

named George wanting to have sexual intercourse with her. The trial court properly

concluded that this amounted to hearsay and was thereby inadmissible.

           Second, rule 412 states that reputation or opinion evidence of the past sexual

behavior of an alleged victim of such crime at all, and evidence of specific instances of

an alleged victim’s past sexual behavior is not admissible absent exceptions to the

specific instances of conduct as outlined by the rule.           See id. R. 412.      Padilla’s


                                               21
proffered testimony falls into the category of testimony that rule 412 seeks to prevent,

and no articulated exception to the admissibility of specific instances was argued by

Vega.    See id. at R. 412(B); see also Montgomery v. State, 415 S.W.3d 580, 584 (Tex.

App.—Amarillo 2013, pet. ref’d) (“Rule 412 strives to balance a defendant's right to

defend himself against the need to protect victims from undue public humiliation and

ridicule.”).   Rather, Vega generally argued that he was denied an opportunity to present

a complete defense.       Accordingly, the trial court did not abuse its discretion by finding

Padilla’s testimony inadmissible under rule 412, as well.

        Vega’s fifth and six issues are overruled.

                                      VI.    CONCLUSION

        We affirm the trial court’s judgment.



                                                          __________________________
                                                          GINA M. BENAVIDES,
                                                          Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
24th day of July, 2014.




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