AFFIRMED; Opinion Filed March 21, 2014.




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-12-01538-CR

                       DOMINGO SANCHEZ-RODRIGUEZ, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 380th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 380-80148-2012

                              MEMORANDUM OPINION
                           Before Justices Moseley, Bridges, and Evans
                                    Opinion by Justice Evans
       A jury convicted Domingo Sanchez-Rodriguez on two counts of indecency with a child.

The trial court sentenced him to three years in prison. In eleven points of error, appellant

generally challenges the sufficiency of the evidence to support his conviction, the admission of

certain evidence, an instruction to the jury, and the effectiveness of his trial counsel. Concluding

that all of appellant’s points of error are without merit, we affirm the trial court’s judgment.

                                           BACKGROUND

       A.J., her mother, and younger sister lived in the same apartment complex as appellant and

his wife, a retired couple. During October and November of 2011, appellant’s wife babysat A.J.

after school at the couple’s apartment until A.J.’s mother came home from work. She also

watched A.J.’s younger sister as well as other children. Appellant was at home when the
children were being watched. A.J. testified that while she was sitting on a chair with appellant

watching television, he rubbed his hands over her clothes on her privates where she urinates. 1

She also stated that appellant showed his “private part” to her and made her touch it while they

were outside behind the apartment complex dumpster. When A.J.’s father picked her up on the

evening of November 9, 2011, A.J. told him her babysitter’s husband showed her his private

parts and made her touch his private parts and that he touched her private parts with his hand.

He called the police and took A.J. to the children’s advocacy center where she was interviewed.

Appellant was arrested very early the next morning. At the police station, he was interviewed

around 4 a.m. or 5 a.m. with the assistance of a Spanish-speaking police officer.            In the

interview, which was recorded, appellant denied any wrongdoing.

          In addition to A.J.’s testimony, the State offered testimony from her father on A.J.’s

outcry statement, testimony from A.J.’s mother about what A.J. told her, and testimony from the

forensic interviewer who interviewed A.J. Investigating police officer Chris Meehan and officer

Lisa Mitchell, who interpreted for appellant during his recorded police interview, also testified.

Additionally, the recordings of A.J.’s forensic interview and appellant’s police station interview

were admitted into evidence. Appellant’s wife and two other witnesses who had children that

appellant and his wife babysat testified for the defense.

                                                        ANALYSIS

Sufficiency of the Evidence

          In his tenth and eleventh points of error, appellant contends that the evidence is legally

and factually insufficient to support his conviction for indecency with a child. Specifically, he

argues the only evidence supporting the verdict was the trial testimony of the then seven-year-

old complainant which was inconsistent with her forensic interview.

   1
       A.J. was seven years old at the time of trial.


                                                          –2–
       We no longer employ separate legal and factual sufficiency standards when reviewing

insufficient evidence complaints in criminal cases. See Merritt v. State, 368 S.W.3d 516, 525 n.8

(Tex. Crim. App. 2012). Instead, the only standard is whether the evidence is sufficient to prove

beyond a reasonable doubt, every element of the crime charged. See Byrd v. State, 336 S.W.3d

242, 246 (Tex. Crim. App. 2011). In reviewing the sufficiency of the evidence, we view all the

evidence in the light most favorable to the verdict, and determine whether any rational trier of

fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 313 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.

2010). We assume the fact finder resolved conflicts in the testimony, weighed the evidence, and

drew reasonable inferences in a manner that supports the verdict. Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007). We defer to the trier of fact’s determinations of witness

credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899.

       Uncorroborated testimony of a child victim is sufficient to support a conviction for a

sexual offense. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1) (West Supp. 2013); Tear

v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref’d). Any conflicts between A.J.’s

trial testimony and her forensic interview were all before the jury and we must defer to its

determination of her credibility and the weight to be given her testimony. See Brooks, 323

S.W.3d at 899. Moreover, A.J.’s father also testified that she told him appellant “made her touch

his private parts and that he touched her private parts with his hands.” We overrule appellant’s

tenth and eleventh points of error.

Father’s Outcry Testimony

       In his first and second issues, appellant challenges the admission of testimony from A.J.’s

father regarding her outcry statement. Appellant contends the trial court abused its discretion in

admitting the hearsay statement without first conducting a hearing outside the presence of the

                                               –3–
jury as required by article 38.072 of the code of criminal procedure. See TEX. CODE CRIM. PROC.

ANN. art. 38.072 § 2(b)(2) (West Supp. 2013). He also asserts that admission of the outcry

statement violated his due process rights under the Texas and United States Constitutions.

        We review a trial court’s ruling regarding the admission of outcry testimony under an

abuse of discretion standard. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990).

At trial, appellant objected to A.J.’s father’s testimony about her outcry statement on the grounds

of hearsay. The trial court initially sustained the objection. After confirming A.J.’s father was

the State’s outcry witness, however, he overruled appellant’s objection and allowed the

testimony without holding a hearing outside the presence of the jury.

        The requirements of article 38.072 are mandatory and appellant’s hearsay objection

sufficiently apprised the trial court of his request for a hearing. See Long v. State, 800 S.W.2d

545, 547–48 (Tex. Crim. App. 1990). However, in this case, any error in failing to hold a

hearing before admitting the testimony was harmless. See Casey v. State, 215 S.W.3d 870, 885

(Tex. Crim. App. 2007) (any error must disregarded unless it affected appellant’s substantial

rights). There were several other instances of similar and more specific and unobjected-to

testimony of the abuse at trial. A.J. testified at trial in detail about appellant’s sexual abuse. The

forensic interviewer also testified as to what A.J. told her, and A.J.’s recorded forensic interview

was played for the jury. In its closing argument, the State focused on A.J.’s trial testimony and

forensic interview and did not mention the outcry statement. Accordingly, any error in admitting

the outcry statement was harmless in light of the other evidence involving similar testimony that

was admitted without objection. See Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston

[1st Dist.] 2002, pet. ref’d).

        Appellant also argues that the failure to hold a hearing before admitting the outcry

statement violated his rights under due process and due course of law provisions of the U.S. and

                                                 –4–
Texas Constitutions, respectively.      Appellant raised only a hearsay objection to the outcry

statement and did not object on the constitutional grounds. Appellant’s objection below does not

comport with the constitutional complaints he now raises. Accordingly, he has failed to preserve

these complaints for appeal. See TEX. R. APP. P.33.1(a)(1); see also Holland v. State, 802

S.W.2d 696, 700 (Tex. Crim. App. 1991). We overrule appellant’s first and second points of

error.

Expert Testimony on A.J.’s Truthfulness and Improper Bolstering

         In points of error three, four, and five, appellant complains about three separate instances

in Meehan’s testimony asserting it was an improper expert opinion on A.J.’s truthfulness and

credibility. Specifically, appellant contends the following italicized testimony from Meehan

should not have been admitted:

         Q. Detective, you testified on direct examination a moment ago that the fact that
         [A.J.] didn’t ever say anything more greater, more spectacular was important.
         Why was that important to you?

                                                ***

         A. I think with the number of cases we investigate, you know, the outcry of the
         child is one of the most important parts of the investigation, and I think she came
         across as very believable because she did not try to embellish anything, she did
         not try to make up, in my opinion, or say more happened than what actually
         happened.

                                                ***

         Q. . . . was there anything else about the [forensic] interview that you feel is
         important to your investigation that you think needs explaining?

         A. No, I think, you know, credibility of the victim is a big part of it when we watch
         these interviews. We look, obviously, for coaching or any type of ideas implanted
         in the kids to say. She didn’t say more than what happened, she didn’t say if it
         was penetration or sexual intercourse. She just, basically, told what happened,
         and I think she’s very believable.

                                                ***

         Q. Do you feel [appellant] was truthful in the interview?

                                                 –5–
         A. No.

         Q. Why is that important?

         A. Because I think the victim was believable in her account of what she said
         happened and the way she described it. And his inconsistency, I think, in my
         opinion corroborated her story.

[Emphasis added]. In his seventh point of error, appellant argues the testimony outlined above

also improperly bolstered A.J.’s testimony.

         To preserve error regarding the admission of evidence, a party must make a timely and

specific objection to the evidence and obtain a ruling. See TEX. R. APP. P. 33.1(a)(1); see also

Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (with limited exceptions, a party

must object each time inadmissible evidence is offered to preserve error for appellate review).

At trial, appellant did not object to the above testimony on the grounds that it was an improper

expert opinion about A.J.’s truthfulness or that Meehan’s testimony constituted improper

bolstering. 2   Accordingly, he has failed to preserve these contentions for our review.                          We

overrule appellant’s third, fourth, fifth, and seventh points of error.

Motion to Suppress Appellant’s Recorded Police Interview

         In his eighth point of error, appellant contends the trial court erred in denying his motion

to suppress his recorded interview because he did not knowingly, intelligently, and voluntarily

waive his rights under Miranda or article 38.22 of the code of criminal procedure. See Miranda

v. Arizona, 384 U.S. 436 (1966); TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2013). To

support his contentions, appellant references his advanced age of seventy-eight, the fact that he

spoke very little English and was arrested at his home early in the morning, then interviewed by

three armed officers at the police station at 4 a.m. or 5 a.m. He also complains that the trial court

    2
      The trial court overruled appellant’s objection to the prosecution’s first question on the grounds that it called
for speculation. Appellant made no objection after Meehan gave his response. Appellant also did not object to the
other two instances of testimony he now challenges.


                                                         –6–
failed to hold a hearing or enter findings of fact and conclusions of law regarding the

voluntariness of his statement pursuant to section 6 of article 38.22. TEX. CODE CRIM. PROC.

ANN. art. 38.22 § 6.

       We review a trial court’s ruling regarding alleged Miranda violations under the totality of

the circumstances, deferring to the trial court’s determination on questions of historical fact and

credibility while reviewing de novo all questions of law and mixed questions of law and fact that

do not turn on credibility. Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011). The

Fifth Amendment right against self-incrimination is satisfied only when a defendant in custody

gives his statements voluntarily. Miranda, 384 U.S. at 444. In order to ensure a statement is

given voluntarily, police officers must supply the defendant with their legal rights and warnings.

Id. at 467. When a defendant asserts a statement was obtained in violation of Miranda doctrine,

the State must establish a valid waiver of Miranda rights by proving by a preponderance of the

evidence that the waiver was (1) a product of a free and deliberate choice rather than

intimidation, coercion, or deception and (2) made with full awareness of the nature of the

abandoned right together with the consequences of the decision to abandon it. See Leza, 351

S.W.3d at 349. Only when the totality of the circumstances surrounding the interrogation reveal

both an uncoerced choice and the requisite level of understanding will the State meet their

burden. See Joseph v. State, 309 S.W.3d 20, 25 (Tex. Crim. App. 2010) (quoting Moran v.

Burbine, 475 U.S. 412, 421 (1986)).

       Because the trial court did not make findings of fact regarding the voluntariness of

appellant’s statement, we abated the appeal in order for the trial court to do so. See Vasquez v.

State, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013) (appellate court must abate appeal for

findings of fact when appellant challenges voluntariness of statement, even when findings not

requested in trial court). Among other things, the trial court found that appellant was read his

                                               –7–
rights in Spanish by a Spanish-speaking officer, who also translated during the interview.

Appellant said that he understood his rights and wanted to speak to the police. The trial court

also found that the officers’ conduct during the interview was not coercive or intimidating, that

the officers never brandished, gestured to, or made reference to their holstered weapons, and the

officers spoke to appellant in a polite, conversational manner, except towards the end of the

interview when two officers raised their voices. The trial court also found that neither the time

the interview was conducted nor appellant’s age affected his waiver of rights.

       We have reviewed the recording of appellant’s interview that was in evidence. The

totality of the circumstances supports the trial court’s determination that appellant’s waiver of his

Miranda rights was voluntary. The evidence showed appellant was read his Miranda rights in

Spanish, indicated he understood his rights, and was willing to talk to the police with the

assistance of the Spanish speaking officer. There is no evidence that the officers intimidated or

coerced appellant into waiving his rights. Throughout most of the interview, the officers spoke

to appellant in a polite and conversational manner. During the interview, one officer’s actions of

leaning against appellant when seated next to him were undertaken to demonstrate appellant’s

explanation of how the complainant would sit with him. Contrary to appellant’s contentions,

appellant did not appear intimidated by this demonstration.         Moreover, there is nothing to

suggest appellant’s age or the time of day the interview occurred affected the voluntariness of

appellant’s waiver. After he was Mirandized in Spanish and agreed to talk to the officers,

appellant was responsive and cooperative, never asked to terminate the interview, or asked for an

attorney. We overrule appellant’s eighth point of error.

Jury Instruction

       In his ninth point of error, appellant argues the trial court erred in instructing the jury as

follows:

                                                –8–
        In this case you have received testimony with the assistance of an official court
        interpreter. The evidence you are to consider is only that provided through the
        official court interpreter. Although some of you may know Spanish, it is
        important that all jurors consider the same evidence. Therefore, you must base
        your decision on the evidence presented in the English interpretation. You must
        disregard any different meaning of the non-English words, if any.

        Appellant asserts the above instruction was an improper comment on the weight of the

evidence because it told the jury to disregard the untranslated Spanish statements on appellant’s

recorded interview and consider only the statements translated into English by the Spanish

speaking officer on the recording. Appellant cites no legal authority for his position that the

court’s instruction was improper and we disagree with appellant’s contention for several reasons.

First, the instruction makes no reference to the appellant’s recorded interview or the Spanish-

speaking officer’s translation. Second, two of the defense witnesses testified at trial through a

Spanish interpreter necessitating the above instruction. The official court interpreter’s translation

created the only permanent record of what these witnesses said for purposes of appeal. See

Flores v. State, 299 S.W.3d 843, 855–56 (Tex. App.—El Paso 2009, pet. ref’d). Finally, to the

extent appellant now complains under this issue that the recording was admitted without a

contemporaneous translation, appellant did not raise this objection at trial and, thus, failed to

preserve that complaint for appellate review. 3 See TEX. R. APP. P. 33.1(a).                        We overrule

appellant’s ninth point of error.

Ineffective Assistance of Counsel

        In his sixth point of error, appellant raises an ineffective assistance claim based on his

counsel’s failure to object at trial to the purported expert testimony on A.J.’s credibility

identified in points of error three through five above, as well as the following portion of the

forensic interviewer’s testimony:

    3
       Officer Mitchell testified at trial and appellant was able to cross-examine her on her qualifications and her
translation during the recorded interview.


                                                       –9–
       Q. Did [A.J.] exaggerate or sexualize any of what she was telling you?

       A. I don’t think so, not from what I remember.

       Q. Why is it important that she not exaggerate what happened to her?

       A. Because she’s telling you exactly what happened and she’s not adding on some
       more things that she can’t support or . . . that she can’t give supporting details
       about. She’s not just trying to get someone in trouble, she’s just telling you what
       happened.

       To prevail on an ineffective assistance of counsel claim, appellant must establish both

that his trial counsel performed deficiently and that the deficiency prejudiced him. State v.

Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (citing Strickland v. Washington, 466

U.S. 668, 687 (1984). With respect to the first prong, the record on appeal must be sufficiently

developed to overcome the strong presumption of reasonable assistance. See Thompson v. State,

9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999). Absent an opportunity for trial counsel to

explain his actions, we will not conclude his representation deficient “unless the challenged

conduct was so outrageous that no competent attorney would have engaged in it.” Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). If, however, no reasonable strategy could

justify trial counsel’s conduct, counsel’s performance is deficient as a matter of law regardless of

whether the record reveals his subjective reasons for his actions. See Andrews v. State, 159

S.W.3d 98, 102 (2005).

       Here, the record is silent as to trial counsel’s reasons for not objecting to purported

opinion testimony about complainant’s credibility. Because appellant has failed to rebut the

presumption of counsel’s competence under the first prong, we need not consider the

requirements of the second prong. See Lopez v. State, 343 S.W.3d 137, 143–44 (Tex. Crim.

App. 2011) (on silent record, court of appeals erred in concluding counsel’s failure to object to

improper outcry-witness testimony and also allow opinion testimony about the credibility of

complainant was ineffective assistance). We overrule appellant’s sixth point of error.
                                               –10–
       We affirm the trial court’s judgment.




                                                  /David Evans/
                                                  DAVID EVANS
                                                  JUSTICE

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

121538F.U05




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

DOMINGO SANCHEZ-RODRIGUEZ,                         On Appeal from the 380th Judicial District
Appellant                                          Court, Collin County, Texas
                                                   Trial Court Cause No. 380-80148-2012.
No. 05-12-01538-CR        V.                       Opinion delivered by Justice Evans,
                                                   Justices Moseley and Bridges participating.
THE STATE OF TEXAS, Appellee

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


Judgment entered this 21st day of March, 2014.




                                                 /David Evans/
                                                 DAVID EVANS
                                                 JUSTICE




                                            –12–
