Affirmed and Opinion Filed July 12, 2018




                                           S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-18-00432-CR

                              JUAN MEDINA BUENO, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                       On Appeal from the 292nd Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F-1160087-V

                              MEMORANDUM OPINION
                          Before Justices Bridges, Brown, and Boatright
                                   Opinion by Justice Bridges
       A jury convicted appellant Juan Medina Bueno of aggravated sexual assault of a child

under fourteen years of age and sentenced him to forty-five years’ confinement and assessed a

$10,000 fine. In three issues, he argues (1) the evidence is insufficient to support his conviction;

(2) the trial court erred by denying his motion for mistrial due to juror misconduct; and (3) the trial

court erroneously admitted extraneous offenses. We affirm.

                                            Background

       When complainant was in the third grade, appellant and Mother separated. Complainant

lived with Mother and her younger brother, but spent weekends with appellant.

       One particular Friday, complainant recalled appellant being drunk when he picked them

up. Later that night, complainant and her brother fell asleep in appellant’s bedroom. Complainant
woke up when appellant came in, and she realized her brother was no longer in the room with her.1

Appellant began sexually assaulting complainant. He stopped at one point, and complainant

escaped to the bathroom. Appellant pulled her back to the bedroom, and then perpetrated the

aggravated sexual assault.

           Once appellant left the room, complainant loaded an air gun and retrieved a large barbecue

fork and “heavy wrench thingy” from the kitchen. She returned to the bedroom and stayed awake

all night prepared to defend herself if appellant returned.

           Complainant did not tell anyone what happened for several weeks. She eventually shared

some details with her cousin, with two adults that worked at her church, and with her school

counselor. She eventually told her mother, who notified police. Complainant then underwent a

physical exam and gave a forensic interview at the Dallas Children’s Advocacy Center.

           Appellant was arrested and charged with aggravated sexual assault of a child under the age

of fourteen. The jury convicted him and sentenced him to forty-five years’ confinement and

assessed a $10,000 fine.

                                                  Sufficiency of the Evidence

           In his first issue, appellant argues the evidence is legally insufficient to support his

conviction because (1) complainant fabricated the story to get attention; (2) she claimed to have

screamed loudly during the assault yet her brother, who was sleeping nearby, did not hear her; (3)

no physical evidence supported her allegations; and (4) she believed she saw ghosts and spirits,

which indicated she could not distinguish fact from fiction. The State responds these were

credibility issues left to the jury, and the jury believed complainant; therefore, the evidence was

legally sufficient to support appellant’s conviction.



     1
       She later saw her brother asleep on the living room couch. She testified she screamed his name as loudly as she could during the assault.
An officer who investigated the allegation testified the brother “provided no information that would corroborate her story.”

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       In reviewing the legal sufficiency of the evidence, we review the evidence in the light most

favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The inquiry is

whether any rational trier of fact could have found the elements of the offense beyond a reasonable

doubt. Billy v. State, 77 S.W.3d 427, 428 (Tex. App.—Dallas 2002, pet. ref’d). The trier of fact

is the sole judge of witness credibility and the weight to be given her testimony. Id. at 429. The

trier of fact may choose to believe or disbelieve all or any part of any witness’s testimony. Id.

       The State indicted appellant for aggravated sexual assault of a child younger than fourteen

pursuant to section 22.021 of the penal code. TEX. PENAL CODE ANN. §22.021 (West Supp. 2017).

Here, complainant’s testimony alone supports the offense as alleged in the indictment and is

sufficient by itself to support conviction for aggravated sexual assault. See TEX. CODE CRIM. PROC.

ANN. art. 38.07; Revels v. State, 334 S.W.3d 46, 52 (Tex. App.—Dallas 2008, no pet.).

       In addition to complainant’s testimony, the jury heard from Katlyn Manchac, the

designated outcry witness. She testified that complainant told her about the sexual assault.

Manchac believed complainant because, “She wasn’t the kind of girl that just went around looking

for attention. She was very quiet. She kept to herself.”

       When officers searched appellant’s home, they recovered the air gun and grilling fork

complainant used for protection the night of the offense in the locations she referenced in her

forensic interview. The lead detective believed an aggravated sexual assault of a child had

occurred after corroborating complainant’s allegations with other witnesses and searching

appellant’s apartment.

       Complainant admitted she believed in and saw spirits. Her therapist testified she was not

concerned by complainant’s admission because the spirits “were not threatening to her, were not

telling her to do things, were not creating a scary environment.” The trier of fact was the sole




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judge of the weight and credibility of this evidence and decided complainant was credible. Billy,

77 S.W.3d at 429.

       Complainant admitted she was being bullied at school around the time she accused

appellant of the offense, and she wanted someone to pay attention to her. She admitted liking the

attention she received from doctors and therapists after she made her outcry, but testified she was

telling the truth about the sexual assault. Again, the jury heard this evidence and decided

complainant was credible. Billy, 77 S.W.3d at 429.

       As to a lack of physical evidence linking appellant to the assault, there is no such

requirement that complainant’s testimony be corroborated by medical or physical evidence. See

Flores v. State, No. 05-06-01297-CR, 2008 WL 2346309, at *4 (Tex. App.—Dallas June 10, 2008,

no pet.) (not designated for publication). Rather, the lack of such evidence is not unusual in cases

of sexual abuse. See Dozier v. State, No. 05-03-01503-CR, 2004 WL 1682360, at *2 (Tex. App.—

Dallas July 28, 2004, pet. ref’d) (mem. op., not designated for publication); see also Murray v.

State, 24 S.W.3d 881, 887 (Tex. App.—Waco 2000, pet. ref’d). The doctor who reviewed

complainant’s medical records and testified explained one reason for the lack of evidence is

because that area of the female body heals quickly.

       Accordingly, complainant’s credibility, the lack of physical evidence, and the possible

motive of complainant to fabricate the story were all before the jury, and the jury determined

appellant was guilty of the offense. After viewing the evidence in the light most favorable to

the verdict and giving the appropriate deference to the jury’s credibility determinations, we

conclude the evidence was legally sufficient to support the offense as charged in the

indictment. We overrule appellant’s first issue.




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                                                       Motion for Mistrial

          In his second issue, appellant argues the trial court abused its discretion by denying his

motion for mistrial after reported juror misconduct. The State responds appellant’s issue is not

preserved for review, or alternatively, the trial court did not abuse its discretion by overruling the

motion because appellant failed to establish any misconduct.

          Pamela Womack, an employee with the Dallas County District Attorney’s Office, reported

to the trial court that she overhead two female voices in the jury room discussing what she thought

was testimony from the trial. She did not actually see the women to confirm whether they were in

fact jurors. Womack summarized what she heard as follows:

                             First thing I heard was somebody said something about she
                     was crying, and then something about, I believe her. And then they
                     talked about how the mother of the victim was only 14 or 15 when
                     she met the defendant and he was 32 and wanted to know why that
                     wasn’t an offense and something was done about it at that time.2

                             And then somebody mentioned that that was okay in Mexico
                     and that that was kind of a standard thing. And then mentioned
                     something about that in Africa it’s – it’s that way, too, and started
                     talking about, you know, if girls get their periods when they’re, like,
                     8 or 9 years old, that means they’re a woman. And that was pretty
                     much all I heard.

Womack believed jurors were discussing the evidence when trial was still in progress and not all

jurors were present. However, she admitted she did not know who else may have been in the room

because she only heard two voices and never looked into the jury room.

          Defense counsel argued the jurors violated the court’s instructions not to discuss the

testimony until after evidence closed and not to deliberate unless all jurors were present. Counsel

contended appellant could not receive a fair trial and the jurors’ actions violated appellant’s

constitutional rights under the 5th, 6th, and 14th amendments. The State questioned whether any



   2
       Mother testified she was fourteen and appellant was thirty-two when they met.

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misconduct occurred and argued a jury instruction would cure any alleged misconduct. The trial

court agreed and overruled appellant’s objections.

       When the jury returned, the trial judge warned he did not know if his prior admonishments

were being followed. He then instructed, “You are not to discuss this case or anything you saw or

heard during the testimony until after you have received all of the evidence in this case. Do I make

myself clear on that point?” One jury asked, “We can’t discuss it amongst each other?” The trial

judge then expounded and clarified his instructions to emphasize that they were not to deliberate

until the evidence was closed, lawyers made closing arguments, they received the charge from the

court, and they were released to deliberate. The trial judge again emphasized all twelve jurors

must be present during discussions.

       We begin by addressing the State’s preservation argument. To preserve an issue for

appellate review, the complaining party must make a timely, specific objection and obtain a ruling

on the objection. TEX. R. APP. P. 33.1. In addition, the argument on appeal must correspond to

the objection made at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). In

other words, “An objection stating one legal theory may not be used to support a different legal

theory on appeal.” Id. (citing Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)).

       At trial, appellant based his motion for mistrial on allegations that two jurors discussed the

case outside the presence of other panel members and before receiving all the evidence, which he

argued violated his constitutional rights under the 5th, 6th, and 14th amendments. However, on

appeal, he argues the trial court erred by overruling his motion for mistrial because the two jurors

displayed bias or partiality. We agree with the State that appellant’s trial objection does not

comport with his issue on appeal. Id. Because the basis of appellant’s complaint regarding the

trial court’s error in denying his request for mistrial does not comport with the basis raised in the

trial court, appellant’s argument is waived. See Broxton, 909 S.W.2d at 918; see also Rivera v.

                                                –6–
State, No. 08-05-00339-CR, 2007 WL 766129, at *2 (Tex. App.—El Paso Mar. 15, 2007, no pet.)

(not designated for publication).

       Even if we concluded appellant preserved his issue for review, “mistrials are an extreme

remedy for prejudicial events occurring during the trial process.” Bauder v. State, 921 S.W.2d

696, 698 (Tex. Crim. App. 1996), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335

(Tex. Crim. App. 2007). Two unidentified individuals who may have been discussing the case in

the juror room is not the type of “emotionally inflammatory” event that could not be cured by

instructions from the trial court. Id. Rather, when curative instructions are given, “our system

presumes that judicial admonishments to the jury are efficacious.” Id.; Ford v. State, 14 S.W.3d

382, 394 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Here, the trial court admonished the

jurors about discussing the case when they were not all together and before they received all the

evidence. The court provided further explanation when a juror asked a specific question requiring

clarification. We presume the jurors followed the trial court’s instructions. Id. Therefore, the trial

court did not abuse its discretion by overruling appellant’s motion for mistrial. Appellant’s second

issue is overruled.

                                    Admission of Extraneous Offenses

       In his third issue, appellant argues the trial court abused its discretion by admitting

extraneous offenses.      The State responds appellant failed to preserve his issue for review.

Alternatively, the State argues appellant received notice of its intent to introduce such evidence,

but error, if any, was harmless.

       During the outcry hearing, Manchac testified complainant told her about the aggravated

sexual assault. The State asked if complainant provided any other information and Manchac said,

“No, I don’t think so.”




                                                 –7–
       At the conclusion of the hearing, defense counsel asked that Manchac’s testimony “be

limited only to what she testified here today . . . .” The State acknowledged it did not “intend on

going beyond what she has testified to here today.” The court granted appellant’s request and told

the parties to approach the bench if something came up during trial.

       During trial, Manchac testified that appellant had been touching complainant for years.

Defense counsel immediately objected, the court told the jury to disregard the answer, and the

court held a brief hearing outside the jury’s presence.

       Defense counsel objected to Manchac’s testimony based on hearsay and “prior acts under

404.” The trial court overruled the objections.

       We first address the State’s preservation argument. To preserve an issue for appellate

review, the complaining party must make a timely, specific objection and obtain a ruling on the

objection. TEX. R. APP. P. 33.1. In addition, the argument on appeal must correspond to the

objection made at trial. Broxton, 909 S.W.2d at 918.

       At trial, appellant objected to Manchac’s testimony because it was hearsay and implicated

prior acts under rule 404. See TEX. R. EVID. 404. On appeal, he argues the trial court abused its

discretion by admitting extraneous offenses in violation of article 38.37 of the code of criminal

procedure. See TEX. CODE CRIM. PROC. art. 38.37 (West 2018). Because appellant’s complaint

on appeal does not comport with his trial objection, appellant’s argument is waived. See Broxton,

909 S.W.2d at 918; see also Ruiz v. State, No. 10-16-00247-CR, 2018 WL 1750826, at *5 (Tex.

App.—Waco Apr. 11, 2018, no pet.) (mem. op., not designated for publication) (issue not

preserved when appellant raised complaint under rule 404 but objected at trial under article 38.37).

       Even if we concluded appellant preserved his issue for review and we assumed the trial

court abused its discretion by admitting the testimony, the error was cured. “An error [if any] in

the admission of evidence is cured where the same evidence comes in elsewhere without

                                                  –8–
objection.” Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004). Here, Mother testified

to similar evidence without objection. Mother said complainant told her the night of the offense

was not the first time appellant acted inappropriately, but “there were other times.” Because

substantially similar evidence was admitted without objection, error, if any, was cured. See

Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting any error was harmless

when “very similar” evidence admitted without objection). Appellant’s third issue is overruled.

                                          Conclusion

       The trial court’s judgment is affirmed.




                                                   /David L. Bridges/
                                                   DAVID L. BRIDGES
                                                   JUSTICE



Do Not Publish
TEX. R. APP. P. 47
180432F.U05




                                                 –9–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 JUAN MEDINA BUENO, Appellant                      On Appeal from the 292nd Judicial District
                                                   Court, Dallas County, Texas
 No. 05-18-00432-CR        V.                      Trial Court Cause No. F-1160087-V.
                                                   Opinion delivered by Justice Bridges.
 THE STATE OF TEXAS, Appellee                      Justices Brown and Boatright participating.

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


Judgment entered July 12, 2018.




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