IN THE
TENTH COURT OF APPEALS
No. 10-12-00225-CR
WESLEY BRANCH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2012-552-C1
MEMORANDUM OPINION
In three issues, appellant, Wesley Branch, challenges his convictions for two
counts of sexual assault of a child and two counts of indecency with a child by contact—
all second-degree felonies. See TEX. PENAL CODE ANN. §§ 21.11(a)(1), (d), 22.011(a)(2)(A),
(f) (West 2011). We affirm.
I. BACKGROUND
In seven counts, appellant was charged by indictment with continuous sexual
abuse of a child, sexual assault of a child, and indecency with a child by contact. The
victim, J.K.-H., is the daughter of appellant’s girlfriend, N.K.1 J.K.-H. testified that she
lived with her grandmother but that she visited her mother often. J.K.-H. and N.K. did
not get along when J.K.-H was younger, but their relationship had improved. J.K.-H.
recalled that when she was nine years old, N.K. began dating appellant. J.K.-H. liked
appellant because he would buy her “clothes and stuff” that her mother and
grandmother could not afford and because he told her that she was prettier than her
mother. Later, J.K.-H. remembered an incident when her mother lived at The
Commons apartment complex on Sanger Avenue in Waco, Texas. According to J.K.-H.,
appellant touched her breast and buttocks when they were walking to the store. J.K.-H.
explained that appellant was showing her “how a boy would touch me,” though she
later clarified that appellant told her “[d]on’t let boys touch you there.” J.K.-H. was in
the seventh grade and about eleven or twelve years old at the time of this incident.
While J.K.-H. was in the eighth grade, she started having anal and vaginal sex
with appellant.2 J.K.-H. noted that, the first time it happened, she was watching
television in the living room. Appellant pulled down her pajama pants and forced her
to have sex. Appellant continued to have sex with J.K.-H. every other week. J.K.-H.
chose not to tell anyone because she did not want to see her mother hurt. J.K.-H.
1To protect the identity of the child victim, we identify the child victim, the child victim’s
mother, and the child victim’s boyfriend by their initials.
2 In her testimony, J.K.-H. also recounted that, when she was nine years old, her uncle, A.K., had
sexually assaulted her. Detective Cyr testified that J.K.-H.’s family did not cooperate in the investigation
of A.K. for sexual assault. According to Detective Cyr, J.K.-H.’s family did not cooperate with the
investigation because they did not believe A.K. was a threat given that he was eventually incarcerated on
drug charges.
Branch v. State Page 2
acknowledged that she started dating M.I. when she was fifteen years old and that they
had sex together.
Thereafter, appellant and J.K.-H. got into an argument when appellant thought
she was having sex with M.I. J.K.-H. believed that appellant was jealous. She told
appellant that she was going to tell N.K. about what he had done to her. N.K. was mad
and could not believe that appellant had been having sex with J.K.-H. N.K. yelled and
screamed at J.K.-H. and appellant. J.K.-H. then went to her grandmother’s house. After
telling her grandmother what had happened, the police were called.
J.K.-H. was taken to the hospital and examined by a SANE nurse, Michele Davis.
J.K.-H. told Davis that appellant had sexually assaulted her since she was eleven years
old. According to Davis, J.K.-H. “was a good historian. She knew her events. She was
very focused. She was compliant.” Davis then examined, among other things, J.K.-H.’s
anus and vagina. Davis noticed that J.K.-H. had “a big hematoma or a big bruise that
was bleeding on her cervix,” which was painful for J.K.-H. Davis also collected DNA
evidence for subsequent testing.
Serena Zboril, a forensic scientist at the Texas Department of Public Safety Crime
Lab in Waco, stated that she tested the evidence collected by Davis. According to
Zboril, the swabs taken from J.K.-H.’s vagina and anus both contained a mixture which
included appellant’s DNA, as well as M.I.’s.
Ann Cyr, a detective with the Waco Police Department, stated that, during her
investigation, J.K.-H. noted that appellant had a distinct mark on his penis. Pursuant to
Branch v. State Page 3
a court order, appellant provided a picture of his penis, which depicted the mark that
J.K.-H. had identified.
Despite this testimony, appellant referenced an affidavit that J.K.-H. executed
prior to trial. Specifically, J.K.-H. averred that:
All of the statements that I have provided to all of the individuals
associated with the above entities were false. Mr. Wesley Branch III and
I have never had a sexual relationship in any form. Mr. Wesley Branch III
has never assaulted me or touched me inappropriately. Every statement
that I made regarding such activity was untrue. I have falsely accused Mr.
Wesley Branch III out of malice and used him so that I did not get in
trouble for the wrongful acts that I was committing at the time that he
caught me on November 21, 2011. I do not want Wesley Branch III to be
further prosecuted. It is my request that the prosecution be dismissed,
and I do not want to testify against Wesley Branch III although I
understand that I may be compelled by legal process to do so even though
it is against my wishes.
(Emphasis in original). The defense also tendered a discipline referral form pertaining
to J.K.-H., wherein she was accused of making a false accusation against a faculty
member at school.
Before submitting the case to the jury, the State agreed to not submit an
instruction on continuous sexual abuse; instead, the State proceeded on the lesser-
included offense of aggravated sexual assault. The jury ultimately found appellant
guilty of two counts of sexual assault of a child and two counts of indecency with a
child by contact and assessed punishment at twenty years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice with no fines for each
count. The trial court ordered that the sentences run consecutively. This appeal
followed.
Branch v. State Page 4
II. DETECTIVE CYR’S TESTIMONY
In his first issue, appellant complains about the testimony of Detective Cyr. In
particular, appellant contends that Detective Cyr improperly commented on J.K.-H.’s
truthfulness as a witness when she stated that J.K.-H. had no reason to lie; that a person
who was lying would exaggerate and claim they were threatened; and that she found
nothing to suggest that J.K.-H. was not being truthful. Essentially, appellant argues that
it was improper for Detective Cyr to bolster the truthfulness of J.K.-H.’s testimony.
To preserve error for appellate review, a complaining party must make a timely
and specific objection. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349
(Tex. Crim. App. 2002). Texas courts have held that points of error on appeal must
correspond or comport with objections and arguments made at trial. Dixon v. State, 2
S.W.3d 263, 273 (Tex. Crim. App. 1998); see Wright v. State, 154 S.W.3d 235, 241 (Tex.
App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not comport with the
issue raised on appeal, the appellant has preserved nothing for review.” Wright, 154
S.W.3d at 241; see Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding
that an issue was not preserved for appellate review because appellant’s trial objection
“does not comport with” the issue he raised on appeal); Ibarra v. State, 11 S.W.3d 189,
197 (Tex. Crim. App. 1999) (same).
On appeal, appellant directs us to six statements made by Detective Cyr that
were allegedly designed to bolster the truthfulness of J.K.-H.’s testimony regarding the
incidents of sexual assault. However, a review of the record shows that appellant did
Branch v. State Page 5
not object to several of the complained-of statements.3 See TEX. R. APP. P. 33.1(a)(1);
Wilson, 71 S.W.3d at 349. Moreover, regarding the statements to which appellant
objected, appellant’s complaints on appeal do not comport with his trial objections. See
Dixon, 2 S.W.3d at 273; see also Wright, 154 S.W.3d at 241. Thus, we cannot say that
appellant has preserved the complaints in his first issue for appellate review. See TEX. R.
APP. P. 33.1(a)(1); see also Resendiz, 112 S.W.3d at 547; Wilson, 71 S.W.3d at 349; Dixon, 2
S.W.3d at 273.
Nevertheless, assuming, arguendo, that appellant preserved his complaints
regarding Detective Cyr’s testimony, we note that the same evidence was admitted
elsewhere in the record without objection. See Lane v. State, 151 S.W.3d 188, 193 (Tex.
Crim. App. 2004) (noting that any error in admitting evidence is cured when the same
evidence is admitted elsewhere without objection) (citing Leday v. State, 983 S.W.2d 713,
718 (Tex. Crim. App. 1998) (“Our rule . . . is that overruling an objection to evidence will
not result in reversal when other such evidence was received without objection, either
before or after the complained-of ruling.”)). Accordingly, based on the foregoing, we
overrule appellant’s first issue.
III. THE STATE’S EXPERT WITNESS
In his second issue, appellant complains that the trial court abused its discretion
in allowing the State’s expert witness, psychologist William Lee Carter, M.D., to bolster
the truthfulness of J.K.-H.’s testimony. Specifically, appellant contends that Dr. Carter
The record does not reflect that appellant asked for and obtained a running objection regarding
3
the complained-of statements.
Branch v. State Page 6
improperly testified as to whether J.K.-H. “was hallucinating or delusional or
describing something solely to get attention” and whether J.K.-H. “was someone who
wanted attention about the sexual abuse.”
The record reflects that the State asked Dr. Carter about whether J.K.-H. was
hallucinating or delusional or would describe something solely to get attention after
defense counsel had already asked Dr. Carter about whether some outcry statements
are the product of attention seeking. Nevertheless, when the State asked Dr. Carter
about the possibility of J.K.-H. making an outcry for attention, appellant objected that
the answer to the question “[i]nvades the purview of the jury.” The trial court
overruled appellant’s objection, and Dr. Carter opined that:
I did not see or have any inkling that she was so disturbed that she was
making a statement in order to satisfy odd psychological disturbances, as
you’ve described them.
....
My opinion was that she was taking a risk.
....
Many sexual abuse victims reach the point where they say to themselves
and they say to the public at large, “I want out of this. I don’t want to be a
victim anymore. I’m coming clean with my story.” And, you know, if
that’s what the child was doing when she made her initial disclosure to
police and if that’s what she was doing when she came here to court and
made her statement yesterday, then we need to take it a face value.
First, we note that the Texas Court of Criminal Appeals has stated that an
objection that a question “invades the province of the jury” is not a valid objection to
opinion testimony. Ortiz v. State, 834 S.W.2d 343, 348 (Tex. Crim. App. 1992); see TEX. R.
Branch v. State Page 7
EVID. 704 (“Testimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of fact.”);
Mock v. State, 848 S.W.2d 215, 225 (Tex. App.—El Paso 1992, pet. ref’d). Furthermore,
the basis of appellant’s second issue is that Dr. Carter’s testimony was designed to
bolster the truthfulness of J.K.-H.’s testimony. Once again, appellant’s complaints on
appeal do not comport with his objections at trial. See Dixon, 2 S.W.3d at 273; see also
Wright, 154 S.W.3d at 241. Thus, based on the foregoing, we conclude that appellant has
failed to preserve this issue for review. See TEX. R. APP. P. 33.1(a)(1); see also Resendiz,
112 S.W.3d at 547; Wilson, 71 S.W.3d at 349; Dixon, 2 S.W.3d at 273. We overrule
appellant’s second issue.
IV. THE WORK-PRODUCT PRIVILEGE
In his third issue, appellant argues that the trial court erred in stating that
appellant’s investigator, Ed McElyea, would have to turn over his work-product
material if he took the stand and testified.
The record reflects that the trial court, defense counsel, and the State engaged in
a lengthy discussion regarding calling McElyea to the stand to testify. The State argued
that if McElyea was called to testify, the State would be able to review all of the notes
that McElyea relied on in preparing to testify. After giving appellant time to mull over
whether he wanted to call McElyea to testify, the trial court noted the following:
I don’t think you’ve laid the ground work for impeachment, because the
witness that we’re talking about, [J.K.-H.], was not told the contents of any
statement, the time and place when the statement was made, she wasn’t
given an opportunity to explain or deny the statement, any particular
Branch v. State Page 8
statement. Until you lay the predicate, you’re not allowed to impeach the
witness with any extrinsic evidence or anything. Do you agree with that?
In response to the trial court’s question, appellant immediately withdrew his
request to call McElyea as a witness. The record does not reflect that the trial court
actually excluded McElyea as a witness. See TEX. R. APP. P. 33.1(a)(2)(A) (stating that an
issue is preserved by a timely and specific objection that is ruled on by the trial court);
see also Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). Because appellant
withdrew his request to call McElyea as a witness, we conclude that no error has been
preserved. See Mays v. State, 285 S.W.3d 884, 889-90 (Tex. Crim. App. 2009); see also
Sanderson v. State, No. 10-11-00255-CR, 2012 Tex. App. LEXIS 3539, at **2-3 (Tex. App.—
Waco May 2, 2012, no pet.) (mem. op., not designated for publication). Accordingly, we
overrule appellant’s third issue.
V. CONCLUSION
Having overruled all of appellant’s issues on appeal, we affirm the judgments of
the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 18, 2013
Do not publish
[CR25]
Branch v. State Page 9