Juan Reyes Rivera v. State

NUMBER 13-09-00623-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JUAN REYES RIVERA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 94th District Court
of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion by Chief Justice Valdez

Appellant, Juan Reyes Rivera, was charged by indictment with the offense of

continuous sexual abuse of a child, a first-degree felony. See TEX. PENAL CODE ANN. §

21.02(b), (h) (Vernon Supp. 2010). A jury convicted Rivera of the charged offense and

sentenced him to life imprisonment in the Institutional Division of the Texas Department

of Criminal Justice. By one issue, Rivera asserts that he was provided ineffective
assistance of counsel because his trial counsel allegedly failed to object to the

admission of hearsay testimony from several witnesses, the admission of testimony

concerning the child victim‘s truthfulness, and the prosecutor‘s closing argument. We

affirm.

I. BACKGROUND

Rivera was charged with continuously sexually abusing J.E., an eight-year-old

child.1 See id. § 21.02(b).2 The abuse was discovered when one of J.E.‘s sisters read

a diary that J.E. kept. In her diary, J.E. noted that ―My grandpa [Rivera] tries to rape

me[,] and I don‘t feel comfortable.‖ When J.E.‘s sister discovered this note, she

immediately took it to J.E.‘s mother, C.L. C.L. was surprised by the allegations, but she

asked J.E. about the incidents. J.E. told C.L. that Rivera had touched her more than

one hundred times and that he had repeatedly exposed his penis to her. J.E. initially

told C.L. that Rivera had only touched her with his hands; however, she later noted that

Rivera also touched her with his penis and that he had penetrated her vagina with his

finger. After hearing this story, C.L. took J.E. to Driscoll Children‘s Hospital (―Driscoll‖)

in Corpus Christi, Texas, so that she could undergo an examination.

1
To protect the identities of the children involved, we refer to them and their mother by their initials.
See TEX. R. APP. P. 9.8.
2
Section 21.02(b) provides that a person commits the offense of continuous sexual abuse of a young
child if:

(1) during a period that is 30 or more days in duration, the person commits two or more acts
of sexual abuse, regardless of whether the acts of sexual abuse are committed against
one or more victims; and

(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of
age or older and the victim is a child younger than 14 years of age.

TEX. PENAL CODE ANN. § 21.02(b) (Vernon Supp. 2010).

2
 Nurse Sandra Pardo, a sexual abuse nurse examiner at Driscoll, conducted the

examination of J.E. Nurse Pardo did not find any evidence of trauma to J.E.‘s sexual

organs; however, she noted that it is often the case that trauma is not revealed in the

examination because the body heals very quickly. Nurse Pardo also took a history from

J.E., whereby J.E. stated that:

Grandpa, Juan Rivera, tried to do some nasty stuff with me. He touched it
(patient [J.E.] indicates female sexual organ by pointing.) His hands were
over my pants. I told him to stop. He stopped. He always does it when
Grandma [Blanca Rivera] is gone or asleep. My brothers and sisters go
out to play and he grabs me.

Nurse Pardo did not recall J.E. telling her that Rivera penetrated her sexual organ or her

anus with his penis or that he ejaculated.

Tanya Flores, an investigator with the Corpus Christi Police Department, testified

that J.E. ―disclose[d] issues pertaining to sexual abuse.‖ Investigator Flores recalled

viewing J.E.‘s diary, where J.E. described that Rivera had raped her; Investigator Flores

noted that J.E. first told her brother, S.E., about the abuse before she told C.L. J.E. told

Investigator Flores that the abuse took place for two years, from when J.E. was six

years old until she was eight years old. Investigator Flores also discovered that the

alleged sexual abuse transpired at Rivera‘s house in Corpus Christi and at a resort in

New Braunfels.

Ricardo Jimenez, the program director and lead forensic interviewer at the

Children‘s Advocacy Center in Corpus Christi, testified that he interviewed J.E. about

the alleged incidents of sexual abuse for eighteen minutes, a length that Rivera

suggested on cross-examination was insufficient to obtain the truth.3 Jimenez noted

3
A DVD of Jimenez‘s interview of J.E. was admitted into evidence. Initially, on appeal, the record
did not contain a copy of the DVD despite a request made by Rivera‘s trial counsel to include the DVD in

3
that J.E. seemed to add details each time she was asked about the abuse. He

characterized this as ―incremental disclosure,‖ wherein ―sometimes kids think they‘re in

trouble, so they‘ll kind of give a little bit of information. If that‘s okay, then more comes

out. . . . [I]f we have an incident of abuse that‘s occurred over a long period of time,

again, more comes out with time.‖ J.E. told Jimenez that Rivera would tell her that she

would owe him ―big‖ or ―big time‖ each time she asked for something and Rivera would

buy it. Towards the end of the interview, Jimenez left the room to discuss the case with

others. He later returned to clear up discrepancies in J.E.‘s stories, especially between

her statement to him and the statements made at Driscoll. 4 J.E. told Jimenez that

Rivera had penetrated her vagina ―30 plus times‖ and that he had touched her vagina

more than 100 times.

S.E. testified that J.E. is one of his younger sisters and that she was ―a good kid‖

who did not get in a lot of trouble. S.E. recalled that Rivera treated J.E. differently than

the other grandchildren. In particular, S.E. stated that ―he [Rivera] would give her all

this money and like we wouldn‘t get no [sic] money and like we would have to use our

own money like if we wanted to buy snacks and then he gave her money so she didn‘t

use her money.‖ S.E. thought that Rivera treated J.E. as his favorite. S.E. remembered

that J.E. told him that Rivera was touching her, but he ―didn‘t really think nothing [sic] of

it.‖ S.E. also remembered one incident where he and his sister, M.E., were locked out

of Rivera‘s house while J.E. and Rivera were the only ones inside. On cross-

examination, Rivera‘s trial counsel questioned S.E. regarding the locked-door incident.

the appellate record. We requested that the trial court provide us with the DVD, which it did. Accordingly,
we have reviewed the DVD in analyzing the record in this appeal.
4
One such discrepancy pertained to J.E.‘s disclosure to Jimenez that Rivera had had sex with
her in the shower, a story that she did not share with Nurse Pardo.

4
S.E. recalled hearing the door lock and trying to open the door, but it would not open. In

addition, S.E. denied ever being touched inappropriately by Rivera.

Rosemary Goltz, a licensed professional counseling intern, stated that she spoke

with J.E. about the incidents and that J.E. appeared to be tired and regressing or, in

other words, acting like a baby. Goltz attributed J.E.‘s odd behavior to post-traumatic

stress disorder. Goltz remembered that J.E. had difficulty concentrating, and it

appeared that J.E. wished to block out the incidents and no longer talk about them. J.E.

disclosed the alleged sexual abuse to Goltz, and at the conclusion of the interview,

Goltz assisted J.E. in filling out a questionnaire. In the questionnaire, J.E. indicated that

Rivera had: (1) been naked around her; (2) masturbated in front of her; (3) not engaged

in intercourse with her; (4) had oral or anal sex with her; (5) did not force her into

prostitution; and (6) forced her to watch pornographic movies.

On cross-examination of each of the aforementioned witnesses, Rivera‘s trial

counsel inquired about J.E.‘s stories about the abuse, insinuating that J.E. may have

not been truthful given the fact that her story changed repeatedly. Rivera‘s trial counsel

repeatedly asked the witnesses about the apparent inconsistencies in J.E.‘s retelling of

the abuse, thus placing J.E.‘s credibility at issue. It was only on re-direct examination

that the State asked questions of the witnesses regarding J.E.‘s truthfulness in order to

rebut the impression that Rivera‘s trial counsel left with the jury—that J.E. was not

truthful. In addition, the State called Goltz and Paula Rosenstein, a therapist at Family

Counseling Service, to testify that J.E. was suffering from post-traumatic stress disorder

5
and that was likely the reason that J.E.‘s stories about the incidents changed or why

J.E. seemed to add more details with each retelling of the stories.5

J.E. testified that, on March 22, 2008, she wrote in her diary that Rivera had

raped her and that she did not feel comfortable about it. J.E. recalled that Rivera

touched her vagina with his hands, both over her clothes and underneath her clothes.

J.E. stated that the sexual abuse typically occurred in the guest room of Rivera‘s house,

which she considered to be her room. She recalled one incident where Rivera allegedly

got on top of her while she was wearing his white t-shirt. In this instance, J.E. was not

wearing any underwear and Rivera purportedly rubbed J.E.‘s vagina with his penis.

She remembered that something white would often come out of Rivera‘s penis. J.E.

denied that Rivera touched her anywhere else but her vagina. J.E. also testified that

Rivera would make her watch pornographic movies and that he would masturbate in

front of her while watching the movies. Further, J.E. noted that Rivera gave her candy,

gifts, and money frequently despite allegedly not giving the other grandchildren

anything. The State characterized these actions as ―grooming‖ J.E. or, in other words,

bribing her to keep quiet about the sexual abuse. Later in her testimony, J.E. admitted

that she had not told Nurse Pardo or Jimenez everything that had transpired, and she

denied ever telling Jimenez that Rivera had ever put his penis inside her vagina.

5
Rosenstein described J.E.‘s purported post-traumatic stress disorder as follows:

It‘s as if she‘s kind of pocketed off different things that happened to her and as she—as
she can or as parts of her kind of open up and—and she relaxes these things come to
her mind. It‘s kind of like she segmented things off so that she can cope and she can
handle it. If she remembered everything at once[,] she would probably become
psychotic.

6
 Rivera and his wife, Blanca Rivera, testified on Rivera‘s behalf. Blanca testified

that she did not believe that Rivera sexually abused J.E. According to Blanca, J.E. told

her that ―nobody touches me.‖ Blanca explained that:

She‘s—she‘s a good little girl, but she lies. She likes to make up stories,
likes to lie a lot, to get her way. If she don‘t [sic] get her way, she gets into
lying, to get the other kids in trouble. That‘s how she is. She‘s a
sweetheart, and I love her very much, but she lies to get her way all the
time. She lies a lot. Constantly lying.

Blanca also testified that virtually everyone else who alleged that Rivera engaged in

wrongdoing lies, especially C.L. Blanca denied seeing Rivera doing ―stuff for just [J.E.]

without also doing stuff for the other kids.‖ She later recognized a letter sent by Rivera

to C.L., which included $12 for just J.E., but Blanca explained that Rivera really meant

for the money to go to J.E. and one of her brothers. Blanca testified that there are not

any pornographic movies or magazines at the Rivera house. Blanca acknowledged that

she had not spoken to J.E. since J.E. made her outcry statements, more than two years

later. Blanca further testified that Rivera did not pay special attention to J.E.

Rivera testified on his own behalf and denied the allegations made in the

indictment and the allegations made by J.E. Rivera denied treating J.E. any differently

than his other grandchildren. Rivera explained that the $12 he sent J.E. was to be used

to buy lunch at school. Rivera testified that he and C.L. had an agreement for Rivera to

claim J.E. as a dependent on his income tax return for 2006 and 2007. He also testified

that Blanca was in charge of the money, and he was only allowed to buy the

grandchildren snacks at the store. Rivera agreed with Blanca that his grandchildren

were ―a bunch of little liars.‖ Rivera believed that the allegations were made against him

7
because he had previously stated that he was no longer going to baby-sit the children

and he was no longer going to assist C.L. financially.

II. STANDARD OF REVIEW

To establish ineffective assistance of counsel, Rivera must show: (1) his

attorney‘s representation fell below an objective standard of reasonableness; and (2)

there is a reasonable probability that, but for his attorney‘s errors, the result of the

proceeding would have been different. See Strickland v. Washington, 466 U.S. 668,

684 (1984); Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999) (holding that

appellant must show a reasonable probability that, but for counsel‘s errors, the fact-

finder would have had a reasonable doubt as to appellant‘s guilt); Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.). Whether this test has been

met is to be judged on appeal by the totality of representation, not by any isolated acts

or omissions. Jaynes, 216 S.W.3d at 851. Rivera has the burden of proving ineffective

assistance of counsel by a preponderance of the evidence. Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403

(Tex. Crim. App. 1984)).

Our review of counsel‘s representation is highly deferential, and we will find

ineffective assistance only if Rivera overcomes the strong presumption that his

counsel‘s conduct fell within the range of reasonable professional assistance. See

Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. The right to ―reasonably

effective assistance of counsel‖ does not guarantee errorless counsel or counsel whose

competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex.

Crim. App. 1983). Moreover, the acts or omissions that form the basis of Rivera‘s

claims of ineffective assistance must be supported by the record. Thompson, 9 S.W.3d

8
at 814; Jaynes, 216 S.W.3d at 851. A silent record which provides no explanation for

counsel‘s actions usually will not overcome the strong presumption of reasonable

assistance. Thompson, 9 S.W.3d at 813-14. To warrant reversal without affording

counsel an opportunity to explain his actions, ―the challenged conduct must be ‗so

outrageous that no competent attorney would have engaged in it.‘‖ Roberts v. State,

220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (quoting Goodspeed v. State, 187 S.W.3d

390, 392 (Tex. Crim. App. 2005)).

III. THE RECORD

At the outset of our analysis of Rivera‘s appellate complaints, we note that Rivera

did not assert that his trial counsel provided ineffective assistance of counsel in his

motion for new trial. Moreover, the record does not reflect that a hearing was

conducted on Rivera‘s motion for new trial; instead, the motion was overruled by

operation of law. See TEX. R. APP. P. 21.8(a), (c); see also State v. Gutierrez, 143

S.W.3d 829, 831 (Tex. App.–Corpus Christi 2004, no pet.). Thus, Rivera‘s trial counsel

has not been afforded an opportunity to explain his trial strategy. Given that a silent

record ordinarily will not overcome the strong presumption of reasonable assistance, we

will review Rivera‘s appellate complaints to determine whether trial counsel‘s alleged

inactions were ―so outrageous that no competent attorney would have engaged in

[them].‖ See Roberts, 220 S.W.3d at 533; Goodspeed, 187 S.W.3d at 392; Thompson,

9 S.W.3d at 813-14.

IV. HEARSAY

In his first sub-issue, Rivera contends that his trial counsel was ineffective for

failing to object to numerous hearsay statements made by several outcry witnesses.

9
Rivera argues that the admission of these statements violated article 38.072 of the code

of criminal procedure, see TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon Supp.

2010),6 and that, but for his trial counsel‘s failure to object to these statements, the

6
Article 38.072 of the code of criminal procedure provides as follows, in pertinent part:

Sec. 1. This article applies to a proceeding in the prosecution of an offense under any of
the following provisions of the Penal Code, if committed against a child 14 years of age or
younger or a person with a disability:

(1) Chapter 21 (Sexual Offenses)

....

Sec. 2.

(a) This article applies only to statements that:

(1) describe:

(A) the alleged offense;

....

(2) were made by the child or person with a disability against whom the charged
offense or extraneous crime, wrong, or act was allegedly committed; and

(3) were made to the first person, 18 years of age or older, other than the
defendant to whom the child or person with a disability made a statement
about the offense or extraneous crime, wrong, or act.

(b) A statement that meets the requirements of Subsection (a) is not inadmissible
because of the hearsay rule if:

(1) On or before the 14th day before the date the proceeding begins, the party
intending to offer the statement:

(A) notifies the adverse party of its intention to do so;

(B) provides the adverse party with the name of the witness through whom it
intends to offer the statement; and

(C) provides the adverse party with a written summary of the statement;

(2) the trial court finds, in a hearing conducted outside the presence of the jury, that
the statement is reliable based on the time, content, and circumstances of the
statement; and

(3) the child or person with a disability testifies or is available to testify at the
proceeding in court or in any other manner provided by law. . . .

10
result of the trial would have been different. The State counters by arguing that ―the

outcries in question are inconsistent, and that Rivera‘s attorney used the

inconsistencies to his advantage.‖ The State also argues that much of the outcry

testimony about which Rivera complains would be admissible under various exceptions

to the hearsay rule.

On appeal, Rivera directs us to the testimony of Lopez, Jimenez, Nurse Pardo,

Goltz, and S.E. He argues that their testimony constituted inadmissible hearsay

because their testimony ―merely repeat[ed] the same event as related to them by the

victim‖ and, thus, violated article 38.072. See id.; see also Broderick v. State, 35

S.W.3d 67, 73 (Tex. App.–Texarkana 2000, pet. ref‘d) (noting that the proper outcry

witness to a single event is the first adult person other than the defendant to whom the

victim made a statement describing the incident).

After reviewing the record, we hold that Rivera‘s reliance on Broderick is

misplaced, and we disagree that the witnesses ―merely repeat[ed] the same event as

related to them by the victim.‖ See Broderick, 35 S.W.3d at 73. First, with respect to

Broderick, we note that the Texarkana Court of Appeals stated the following:

Because of the way in which the statute [article 38.072] is written, an
outcry witness is not person-specific, but event-specific. Before more than
one outcry witness may testify, however, the outcry must be about a
different event, and not simply a repetition of the same event as related by
the victim to different individuals. From a careful reading of the outcry
witness statute, we conclude that there may be two proper outcry
witnesses if they each testify about different events, but there may be only
one outcry witness to the victim‘s statement about a single event.

Id. Therefore, under article 38.072, the State may call upon multiple outcry witnesses to

testify so long as the witnesses testify about different events. In the instant case, J.E.

TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon Supp. 2010).

11
alleged that Rivera sexually assaulted her more than 100 times during a two-year

period—from when she was six years old until she was eight years old. The State‘s

outcry witnesses testified to J.E.‘s recounting of several events, including times when

Rivera allegedly: (1) stuck his penis inside J.E.‘s vagina; (2) touched J.E.‘s vagina with

his fingers; (3) rubbed his penis on J.E.‘s vagina; and (4) forced J.E. to watch

pornographic videos while masturbating. Based on the allegations made by J.E., Rivera

engaged in numerous instances of sexual assault or, in other words, multiple events.

Therefore, we cannot say that the outcry witnesses‘ testimony repeated information

about the same event and was, therefore, inadmissible under article 38.072. See id.;

see also TEX. CODE CRIM. PROC. ANN. art. 38.072.

Moreover, several witnesses testified that J.E.‘s story regarding the ongoing

sexual abuse changed slightly each time she told it. In particular, Jimenez stated that

J.E. appeared to engage in what is known as ―incremental disclosure,‖ wherein the child

victim discloses additional information about ongoing incidences of abuse each time

they speak to someone with whom they are comfortable. Further, Rosenstein and Goltz

described J.E. as having post-traumatic stress disorder, which affected her ability to

convey detailed descriptions of the two years of alleged sexual abuse. The

inconsistencies in J.E.‘s outcry statements and the fact that the sexual abuse was

repeated and ongoing for two years do not support Rivera‘s contention that the

complained-of testimony was repetitive and, thus, inadmissible.

Based on our review of the record, it appears that an objection to the

complained-of testimony would not have been successful. Instead, on cross-

examination, trial counsel questioned most of the witnesses regarding the changes in

12
J.E.‘s story about the two-year period of sexual abuse. Such questioning was likely

done to undermine J.E.‘s credibility before the jury and, therefore, appears to be

grounded in legitimate trial strategy. See Garza v. State, 213 S.W.3d 338, 348 (Tex.

Crim. App. 2007) (stating that if counsel‘s reasons for his conduct do not appear in the

record and there is ―at least the possibility‖ that the conduct could have been grounded

in legitimate trial strategy, we will defer to counsel‘s decisions and deny relief on an

ineffective-assistance claim on direct appeal). Furthermore, even assuming that trial

counsel‘s failure to object to hearsay statements was not grounded in reasonable trial

strategy, Rivera has not clearly demonstrated that there is a reasonable probability that,

but for his trial counsel‘s unprofessional errors, the result of the proceeding would have

been different, especially considering that J.E. testified about the ongoing sexual abuse,

and a child victim‘s testimony alone is sufficient to sustain a conviction for sexual

assault. See Strickland, 466 U.S. at 684; see also TEX. CODE CRIM. PROC. ANN. art.

38.07 (Vernon 2005) (providing that the testimony of the sexual abuse victim alone is

sufficient to support a conviction based on that abuse); Ozuna v. State, 199 S.W.3d

601, 606 (Tex. App.–Corpus Christi 2006, no pet.) (same). We, therefore, overrule

Rivera‘s first sub-issue.

V. THE CHILD VICTIM’S TRUTHFULNESS

In his second sub-issue, Rivera argues that his trial counsel was ineffective for

failing to object to opinion testimony regarding the credibility of J.E. In particular, Rivera

complains about the opinion testimony of Investigator Flores, S.E., and Goltz regarding

J.E.‘s truthfulness and states that this testimony constituted impermissible bolstering.

The State asserts that Rivera‘s trial counsel likely did not object to this testimony

because the witnesses were ―coming across as biased‖; thus, an objection would not

13
have been beneficial. The State also points out that Rivera‘s trial counsel elicited

testimony from Rivera‘s wife that the child victim was a ―good little girl‖ who had a

tendency to lie and make up stories.

A. Applicable Law

―Bolstering occurs when one party introduces evidence for the purpose of adding

credence or weight to earlier unimpeached evidence offered by that same party.‖

Rousseau v. State, 855 S.W.2d 666, 681 (Tex. Crim. App. 1993) (citing Guerra v. State,

771 S.W.2d 453, 474 (Tex. Crim. App. 1988). The court of criminal appeals has also

stated that bolstering evidence is:

any evidence the sole purpose of which is to convince the fact[-]finder that
a particular witness or source of evidence is worthy of credit, without
substantively contributing ―to make the existence of a fact that is of
consequence to the determination of the action more or less probable than
it would be without the evidence.‖ Accordingly, evidence that corroborates
another witness‘ story or enhances inferences to be drawn from another
source of evidence, in the sense that it has an incrementally further
tendency to establish a fact of consequence, should not be considered
―bolstering.‖

Cohn v. State, 849 S.W.2d 817, 819-20 (Tex. Crim. App. 1993) (emphasis in original)

(citation omitted).

―Regardless of whether a witness is impeached, additional evidence to the same

effect is not ‗bolstering‘ if . . . it makes any substantive contribution or incrementally

tends to further a fact of consequence.‖ Briones v. State, 12 S.W.3d 126, 129 (Tex.

App.–Fort Worth 1999, no pet.). It is not improper bolstering if the testimony elicited is

used to rebut prior impeachments by opposing counsel. See Skeen v. State, 96 S.W.2d

567, 578 (Tex. App.–Texarkana 2002, pet. ref‘d) (―Testimony elicited to rebut prior

impeachments by opposing counsel is not considered improper bolstering.‖) (citing

14
Anderson v. State, 717 S.W.2d 622, 629 (Tex. Crim. App. 1986)); see also Sepulveda v.

State, No. 13-07-627-CR, 2009 Tex. App. LEXIS 981, at *17 (Tex. App.–Corpus Christi

Feb. 12, 2009, pet. ref‘d) (mem. op., not designated for publication).

B. Discussion

In this sub-issue, Rivera complains about statements made by Investigator

Flores, S.E., and Goltz regarding J.E.‘s truthfulness. In particular, Rivera asserts that

―[i]t is generally improper for a witness to offer a direct opinion as to the truthfulness of

another witness and such opinion is therefore inadmissible.‖ Blackwell v. State, 193

S.W.3d 1, 21 (Tex. App.–Houston [1st Dist.] 2006, pet. ref‘d). According to Rivera,

testimony from Investigator Flores, S.E., and Goltz amounted to inadmissible bolstering

of J.E.‘s credibility.

After reviewing the complained-of testimony, we are unable to find any instance

of inadmissible bolstering. With respect to Investigator Flores, Rivera directs us to

testimony on re-direct examination whereby Investigator Flores denied that J.E. made

up her stories because she hated Rivera and stated that she believed J.E.‘s outcry

statements. However, Rivera fails to consider that his trial counsel put J.E.‘s credibility

at issue numerous times throughout the trial and especially during his first cross-

examination of Investigator Flores. Specifically, during his first cross-examination,

Rivera‘s trial counsel impeached Investigator Flores with evidence that police did not

follow up in investigating C.L.‘s boyfriend as a possible suspect and asked whether

Investigator Flores ―believe[d] the child‖ regarding whether Rivera was the perpetrator of

these offenses. Therefore, with respect to Investigator Flores, the State was entitled to

question Investigator Flores on re-direct examination about J.E.‘s truthfulness to rebut

prior impeachment by Rivera‘s trial counsel. See Anderson, 717 S.W.2d at 629; Skeen,

15
96 S.W.2d at 578; see also Sepulveda, 2009 Tex. App. LEXIS 981, at *17. The same is

true with respect to S.E. and Goltz‘s testimony. Rivera‘s trial counsel questioned S.E.

and Goltz about the changes in J.E.‘s stories regarding the incidents, thus putting J.E.‘s

credibility at issue. On re-direct examination, the State questioned S.E. and Goltz about

whether J.E. would make up stories about Rivera. Therefore, because the State was

entitled to rebut Rivera‘s prior impeachment of Investigator Flores, S.E. and Goltz

regarding J.E.‘s truthfulness, an objection would have likely been overruled. As such,

we cannot say that Rivera has satisfied the first prong of the Strickland analysis. See

466 U.S. at 684. Accordingly, we overrule Rivera‘s second sub-issue.

VI. THE PROSECUTOR’S CLOSING ARGUMENT

In his third sub-issue, Rivera contends that his trial counsel should have objected

to statements made by the prosecutor during his closing argument about J.E.‘s

truthfulness. The State argues that the complained-of statements during the

prosecutor‘s closing argument constituted a permissible summation of the evidence and

a reasonable deduction from the evidence; therefore, Rivera‘s trial counsel did not err in

failing to object to the State‘s closing argument because such an objection likely would

not have been successful.

A. Applicable Law

Permissible jury argument generally falls into one of four areas: (1) summation

of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the

argument of opposing counsel; or (4) a plea for law enforcement. Brown v. State, 270

S.W.3d 564, 570 (Tex. Crim. App. 2008); Berry v. State, 233 S.W.3d 847, 859 (Tex.

Crim. App. 2007).

16
 Even when an argument exceeds the permissible bounds of these
approved areas, such will not constitute reversible error unless, in light of
the record as a whole, the argument is extreme or manifestly improper,
violative of a mandatory statute, or injects new facts harmful to the
accused into the trial proceeding.

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (citing Todd v. State,

598 S.W.2d 286, 296-97 (Tex. Crim. App. 1980)). ―The remarks must have been a

willful and calculated effort on the part of the State to deprive appellant of a fair and

impartial trial.‖ Id. (citing Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)).

Nevertheless, when analyzing any harm that may have been caused by an

improper jury argument, we examine the following factors: (1) the severity of the

misconduct (the magnitude of the prejudicial effect of the prosecutor‘s remarks); (2)

measures adopted to cure the misconduct (the efficacy of any cautionary instruction by

the judge); and (3) the certainty of conviction absent the misconduct (the strength of the

evidence supporting the conviction). Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim.

App. 2004) (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on

reh‘g)).

In analyzing the State‘s remarks during closing argument, we must not consider

the statement in isolation; instead, we should review the closing arguments of both

parties in order to determine the context in which the complained-of statements were

made. See Wilson v. State, 938 S.W.2d 57, 61 (Tex. Crim. App. 1996) (―The applicable

legal standard of review is whether, in light of the record as a whole, there is a

reasonable possibility the improper argument might have contributed to appellant‘s

conviction.‖); see also Ozuna, 199 S.W.3d at 613 (holding that the complained-of jury

argument is considered in light of the record as a whole).

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 B. Discussion

On appeal, Rivera specifically complains about the following statements made

during the State‘s closing argument:

I mean, I—I hope, when you go back to deliberate and you think
about that that—that troubles you as much as it troubles me because it
doesn‘t make any sense that [J.E.] would lie about this only because she‘s
been told she can‘t come around because she‘s making the house dirty,
and she is the only one making this claim.

....

So—so why would [J.E.] make up a story that gets her, oh, my
God, in all this hot water? I mean, she had to get up here and say things
in front of—in front of 13 total strangers? I mean, imagine if you had to do
that. Imagine—we‘re not talking about raping. Imagine if some said,
―Juror, take the stand and talk about the way things are with your wife at
night,‖ I mean, you would be mortified, right? So how do you think that
little kid felt like when she had to sit here and talk about what happened,
right. Why would she put herself through that if it wasn‘t true? I mean,
that just doesn‘t make sense.

....

And you saw her demeanor when she was up there. I mean, what does
that tell you? She‘s telling the truth. I mean, what nine or ten year old
would know that a man‘s erect penis is big, brown and pointy, right? I
mean, where do you think she got that? Do you think that just came to her
in her dreams?

During trial, Rivera‘s trial counsel repeatedly asked witnesses about the changes

in J.E.‘s stories regarding the incidents. Furthermore, both Blanca and Rivera testified

that J.E., C.L., S.E., and others lie constantly to get their way. Therefore, Rivera‘s

defensive theory was that these allegations were falsely made in an attempt to get

Rivera in trouble, which as Rivera explained, was probably due to Rivera‘s refusal to

baby-sit his grandchildren anymore. In his closing statement, the prosecutor responded

to this defensive theory and explained that J.E. did not have a motive to lie about

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Rivera. See Brown, 270 S.W.3d at 570; Berry, 233 S.W.3d at 859; see also Wolfe v.

State, 917 S.W.2d 270, 280-81 (Tex. Crim. App. 1996) (stating that rhetorical questions

are generally within the scope of jury argument so long as they are based upon a

reasonable deduction from the evidence and that a prosecutor ―may argue his opinions

concerning issues in a case so long as the opinions are based on evidence in the

record and not as constituting unsworn testimony‖). The prosecutor also summarized

the evidence adduced at trial, including testimony from J.E. about what Rivera‘s penis

looked like. See Brown, 270 S.W.3d at 570; Berry, 233 S.W.3d at 859. Because the

portion of the prosecutor‘s closing argument about which Rivera complains constitutes a

summation of the evidence and a response to Rivera‘s defensive theory, we cannot say

that the prosecutor‘s closing argument was improper. See Brown, 270 S.W.3d at 570;

Berry, 233 S.W.3d at 859. Thus, an objection by Rivera‘s trial counsel to the

prosecutor‘s closing argument likely would not have been successful. As a result, we

overrule Rivera‘s third sub-issue.

VII. CONCLUSION

Having overruled all of Rivera‘s issues on appeal, we affirm the judgment of the

trial court.

____________________
ROGELIO VALDEZ
Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
10th day of March, 2011.

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