AFFIRM; and Opinion Filed August 10, 2015.
S
Court of Appeals
In The
Fifth District of Texas at Dallas
No. 05-14-00973-CR
ISIDRO REYNA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1162933-Q
MEMORANDUM OPINION
Before Justices Bridges, Fillmore, and Brown
Opinion by Justice Brown
Isidro Reyna appeals his conviction for continuous sexual abuse of M.A., a child younger
than fourteen years of age. After finding appellant guilty of the charged offense, the jury
assessed punishment at twenty-eight years’ confinement. In a single issue, appellant claims the
trial court abused its discretion by allowing certain evidence. We affirm.
BACKGROUND
Twelve-year-old M.A. testified she lived with her mother, Julia, several siblings, and
Julia’s husband, appellant. 1 When M.A.’s friend, F.S., said her uncle was hurting her by trying
to touch and kiss her, M.A. revealed that appellant had been doing similar things to M.A.
1
Julia is M.A.’s biological aunt.
According to M.A., when she was seven or eight years old, appellant came up behind her,
reached under her shirt, and touched her breasts while she was playing video games on the
couch. She told the jury she was about nine years old when he touched her “middle part” with
his fingers. She described her “middle part” as where she pees. She said it felt “weird” and hurt
when he did it. On another occasion, appellant called from the bathroom and asked her to bring
him a towel. When he opened the bathroom door, he did not have any clothes on. He took her
hand, “put it on his middle part,” and made her “move it up and down.” According to M.A., the
“white stuff that came out” of his middle part ended up on her face, near her mouth. M.A. could
not remember how old she was at that time. She also told the jury that one night, while she was
asleep, appellant came in her bedroom and tried to “put his middle part in my butt, but he
couldn’t.” The “white stuff” went on her shorts, underwear, and bed covers. She threw away
her underwear the next morning but could not remember what she did with her shorts. On
another occasion, appellant tried to put his middle part in her mouth while she was sleeping.
Christine Mack, a forensic interviewer with the Dallas Children’s Advocacy Center, was
the outcry witness. She began her testimony by detailing her educational background and
training; she then described for the jury how a forensic interview is conducted and what types of
things the interviewer looks for. She discussed, at length, what red flags are, describing them as
indicators of whether something has in fact occurred or whether the child is being told to say it
occurred. She indicated red flags would also show whether a child was holding back information
or giving full disclosure.
When Mack interviewed M.A., the child made “multiple disclosures of abuse.” Mack,
who speaks Spanish fluently, interviewed M.A. in Spanish and detailed the incidents for the jury.
According to Mack, appellant touched M.A.’s breasts on at least two separate occasions: once
by taking her shirt off and the other by placing his hands underneath her shirt. M.A.
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demonstrated the rubbing motion he used when touching her breasts. Another time, appellant
came up behind her, pulled her pants down “just a little bit,” stretched her underwear out, and
touched her vagina with his finger. The next incident occurred when M.A. was sleeping;
appellant opened her mouth and, grabbing his penis, put it inside her mouth. He then moved his
hands forward and backwards until she felt what she called “baba” in her mouth. Mack
described “baba” as Spanish for “spit, saliva, slime, [or] something of that nature.” M.A.
swallowed the “baba,” and appellant stopped. Another time, M.A. was sleeping, and appellant
came into her room. He pulled down her shorts and underwear, then touched her butt with his
penis. M.A. said it “felt like a stick” and she could “feel the baba on her butt.” The following
morning, she woke and saw the “white crusty stuff” on her shorts and underwear. She threw her
shorts in the wash, threw her underwear out, and put on clean clothes. Finally, M.A. told Mack
that appellant showed her iPhone videos of naked adults kissing on a bed, telling her that was
what “he wanted to do to her.”
When asked if she determined whether M.A.’s testimony had red flags, appellant
objected on the grounds Mack was being asked to judge whether M.A. was telling the truth and
that it was inappropriate. The trial court overruled appellant’s objection, after which Mack stated
she did not “determine any red flags. And just for clarification, our red flags, we do not make an
opinion on the case.” When asked to elaborate, Mack said, “[w]e are never going to tell a police
officer we think the child is telling the truth or the child’s lying.”
Sandra Onyinanya is a pediatric nurse practitioner and the sexual assault nurse examiner
(SANE) at the REACH Clinic at Children’s Medical Center Dallas. She examined M.A. but
found no signs of physical trauma. Onyinanya said this was quite common and that 85-95% of
the SANE exams were normal. This is due, in large part, to the type of tissue in the vaginal and
anal areas and its ability to heal quickly. Onyinanya also noted M.A.’s mother was unsure of
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what had happened and whether to believe M.A. Specifically, her mother said M.A.’s friend,
F.S., reported she was sexually abused by her uncle and got gifts from CPS, and that M.A. “now
wants the same thing.” Onyinanya told her that the majority of the time, “children typically [do
not] make up stories about sexual abuse.” She further noted that if a child is able to give the
detail M.A. did in her forensic interview, “then that was beyond makeup.”
At the time of M.A.’s outcry, Detective Daniel Greene was assigned to the Child Abuse
Division of the Dallas Police Department and investigated her claims. He requested a forensic
interview for M.A. and was present when Mack interviewed her. According to Greene, M.A.
said her uncle abused her. When Greene was asked whether he observed any “red flags” in the
course of M.A.’s interview, appellant objected that such testimony was an attempt to bolster
M.A.’s credibility. The trial court overruled the objection, and Greene testified he did not
observe any red flags. The State then asked Greene to define what a red flag was, and appellant
again objected and asked for a running objection to “red flag testimony.” The trial court
overruled the objection and granted appellant a running objection as requested. Greene
described a “red flag” as “a statement made by the child or something in the case which would
cause us to have concern for the credibility of the child.” He then gave several generic
examples, including a child using vocabulary inconsistent with the child’s age. Greene said that,
in light of M.A.’s statements, he obtained a warrant for appellant’s arrest, as well as a search
warrant for the family home.
Greene arrested appellant and read him his Miranda rights. He then interviewed
appellant, who initially denied M.A.’s allegations, but later admitted touching M.A.’s “vagina
over her clothing at least five times.” He also admitted it happened over a period of several
months and that “[m]ost of the time it was over her clothes.” When Greene asked appellant if
M.A. initiated the conduct, appellant responded, “No. Never can a girl that age start something
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like that.” Appellant also admitted having an obsession with pornography but said he did not
show pornographic materials to M.A. He also denied any other sexual abuse occurred and
specifically denied penetrating M.A. or putting his penis in her mouth. Greene said that, in his
experience with people suspected of sexual abuse, “they hold back” information and “minimize
their culpability.” Greene also told the jury he seized the bed covers on M.A.’s bed as well as
appellant’s iPhone, but no physical evidence was found.
After hearing this and other evidence, the jury found appellant guilty of continuous
sexual abuse of a child younger than fourteen years of age. This appeal followed.
ADMISSION OF EVIDENCE
In his sole issue, appellant claims the trial court erred by allowing Mack and Greene to
testify whether they detected “red flags” during M.A.’s interview which, he contends,
commented on M.A.’s credibility. He claims his substantial rights were affected and we must
reverse his conviction.
Although we review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard, Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010), we
conclude we need not address whether the admission of the complained of testimony in this case
was an abuse of discretion because, even if it were, appellant has not shown reversible error.
The wrongful admission of evidence constitutes non-constitutional error, and we must disregard
it unless it affected appellant’s “substantial rights.” TEX. R. APP. P. 44.2(b). An error affected a
substantial right “when the error had a substantial and injurious effect or influence in
determining the jury’s verdict.” Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010);
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Despite non-constitutional error,
we affirm a criminal conviction if, after examining the record as a whole, we are left with the fair
assurance that the error did not influence the jury or influenced the jury only slightly. Morales v.
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State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). We analyze the entire record to determine if
the trial court’s error had no or only a slight effect on the jury’s decision. Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998); Wilson v. State, 90 S.W.3d 391, 393 (Tex.
App.―Dallas 2002, no pet.). We consider all the evidence, the nature of the evidence supporting
the verdict, and the character of the error and its relationship to other evidence, as well as the
trial court’s instructions to the jury and the parties’ closing arguments, to determine if the error
substantially affected appellant’s rights. Wilson, 90 S.W.3d at 393.
The record reflects M.A. testified at trial and gave specific, sensory detail that, beginning
when she was eight years old and ending several months later when she was nine years old,
appellant touched her breasts and vagina on several occasions, placed his penis in her mouth and
on her butt, and that on one occasion, he made her grab his penis until he ejaculated. Appellant
admitted he touched M.A.’s vagina at least five times and, although he initially said all the
touching was “over her clothes,” he later said it was over her clothes “most of the time.” During
closing arguments, the State focused on M.A.’s in-court statement as well as appellant’s video-
taped statement to Greene. No mention was made of red flags or whether or not Greene or Mack
thought M.A. was telling the truth.
Considering the record as a whole, including all the evidence presented, the nature of the
evidence supporting the verdict, the character of the asserted error and its relationship to other
evidence, the instructions of the court, and closing argument, we are left with the fair assurance
that the trial court’s error, if any, did not influence the jury or influenced the jury only slightly.
See id. We therefore disregard the trial court’s non-constitutional error, if any, as harmless. See
TEX. R. APP. P. 44.2(b). We overrule appellant’s sole issue.
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We affirm the trial court’s judgment.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
140973F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ISIDRO REYNA, Appellant On Appeal from the 204th Judicial District
Court, Dallas County, Texas
No. 05-14-00973-CR V. Trial Court Cause No. F11-62933-Q.
Opinion delivered by Justice Brown, Justices
THE STATE OF TEXAS, Appellee Bridges and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 10th day of August, 2015.
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