Adam S. Delgado v. State

MEMORANDUM OPINION
No. 04-10-00797-CR

Adam S. DELGADO,
Appellant

v.

The STATE of Texas,
Appellee

From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR1078
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice

Delivered and Filed: July 5, 2012

AFFIRMED

Adam S. Delgado was convicted by a jury of two counts of aggravated sexual assault of a

child, two counts of indecency with a child, and one count of continuous sexual abuse of

children. On appeal, Delgado contends: (1) the trial court erred in denying his motion to quash;

(2) his convictions violate the constitutional guarantee against double jeopardy; (3) the jury was

not required to reach a unanimous verdict; (4) the trial court erred in admitting the testimony of a

child protective services investigator and a forensic interviewer; and (5) the trial court abused its
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discretion in denying his request to appear before the jury wearing his military uniform. We

affirm the trial court’s judgment.

MOTION TO QUASH

The indictment in the underlying cause contained five counts alleging: (I) aggravated

sexual assault on or about November 1, 2008, by Delgado penetrating the mouth of M.H. with

his sexual organ while using and exhibiting a deadly weapon: his bodily fluids; 1 (II) aggravated

sexual assault on or about November 1, 2008, by Delgado causing M.H.’s sexual organ to

contact Delgado’s mouth while using and exhibiting a deadly weapon: his bodily fluids; (III)

indecency with a child on or about November 1, 2008, by Delgado touching M.H.’s genitals;

(IV) indecency with a child on or about November 1, 2008, by Delgado touching M.H.’s anus;

and (V) continuous sexual abuse of children on or about June 1, 2008 through on or about

November 1, 2008, by Delgado, during a period of 30 days or more in duration, committing two

or more acts of sexual abuse against M.D. and M.H. in violation of one or more penal laws

including aggravated sexual assault by: (a) penetrating M.H.’s sexual organ with his finger; (b)

causing the anus of M.H. to contact his mouth; and (c) causing the anus of M.D. to contact his

sexual organ. Delgado filed a motion to quash the indictment asserting the following:

Defendant’s right to a fair and impartial trial will be denied if the State is
allowed to include Count V of the Indictment and present evidence to that effect
in its case in chief in the above styled and numbered cause. Count V alleges an
entirely different incident with a different victim and is not an essential element
necessary for the State to prove its case in Counts I-IV. This Court has
jurisdiction over this Indictment without the necessity of Count V.

The prejudicial nature of Count V far outweighs any probative value the
State may argue Count V contains.

During the hearing on Delgado’s motion to quash, his attorney argued Count V deals with a

different victim, M.D., than the victim in Counts I-IV, M.H. The attorney noted that the State
1
Evidence was presented that Delgado was HIV positive.

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had indicted Delgado in a separate cause for acts alleged to have been committed against M.D.,

so “by granting this motion to quash count five, or at least remove the third part, I guess what

you would call a paragraph under part five, the State is not being prejudiced.” The attorney

argued adding a second victim, M.D., in the third sentence under Count V would unfairly

prejudice Delgado’s constitutional rights “in the sense of fair play and justice.” The attorney

requested “a severance or a quashing of count five as it relates to [M.D.] and that issue.”

In his brief on appeal, Delgado argues his motion to quash was directed at a limitation set

forth in section 21.02(e) of the Texas Penal Code because the allegations in Counts I-IV and the

first two offenses listed in Count V were against the same victim in the same criminal

transaction. Delgado also argues that the indictment failed to provide sufficient notice to prepare

a defense as to the bodily fluid allegation since bodily fluids are not per se deadly weapons.

In order for error to be preserved for appellate review, rule 33.1 of the Texas Rules of

Appellate Procedure requires the record to show that the complaint was made to the trial court by

a timely request, objection, or motion that stated the grounds for the ruling being sought with

sufficient specificity to make the trial court aware of the complaint unless the specific grounds

were apparent from the context. TEX. R. APP. P. 33.1(a). “This Rule encompasses the concept of

‘party responsibility.’” Pena v. State, 285 S.W.3d 459, 463 (Tex. Crim. App. 2009). “The

complaining party bears the responsibility of clearly conveying to the trial judge the particular

complaint, including the precise and proper application of the law as well as the underlying

rationale.” Id. at 463-64. “Whether a party’s particular complaint is preserved depends on

whether the complaint on appeal comports with the complaint made at trial.” Id. at 464. “In

making this determination, we consider the context in which the complaint was made and the

parties’ shared understanding at that time.” Id.

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The record in this case demonstrates that the complaint made at trial was the inclusion of

the second victim, M.D., in the third paragraph of Count V of the indictment. The complaint on

appeal pertaining to allegations involving the first victim, M.H., does not comport with the

complaint made at trial. Accordingly, this error is not preserved for appellate review. See TEX.

R. APP. P. 33.1(a); Pena, 285 S.W.3d at 463-64.

DOUBLE JEOPARDY

In his second issue, Delgado argues that double jeopardy barred him from being

convicted of (1) three counts of aggravated sexual assault (Counts I, II, and V) which were the

same criminal conduct; (2) both: (a) continuous course of sexual abuse by penetrating the sexual

organ of M.H. with his finger; and (b) indecency with a child by touching part of M.H.’s

genitals; and (3) both (a) continuous course of sexual abuse by causing the anus of M.H. to

contact Delgado’s mouth; and (b) indecency with a child by touching the anus of M.H. Both

Delgado and the State note that Delgado did not preserve his double jeopardy claim at trial.

Because the first two double jeopardy violations alleged by Delgado would fail even if the

complaints had been preserved, we will delay our discussion of the preservation issue until our

discussion of the third double jeopardy violation asserted by Delgado in his brief.

“The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through

the Fourteenth Amendment, protects an accused against a second prosecution for the same

offense for which he has been previously acquitted or previously convicted.” Littrell v. State,

271 S.W.3d 273, 275 (Tex. Crim. App. 2008). “It also protects an accused from being punished

more than once for the same offense.” Id. “The instant case involves the issue of multiple

punishments stemming from a single prosecution.” Id. “In the multiple-punishments context,

two offenses may be the same if one offense stands in relation to the other as a lesser-included

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offense, or if the two offenses are defined under distinct statutory provisions but the Legislature

has made it clear that only one punishment is intended.” Id. at 275-76. “Sameness in this

context is a matter of legislative intent.” Id. at 276.

“The traditional indicium of that legislative intent is the so-called ‘same elements’ test of

Blockburger v. United States,” 284 U.S. 299, 304 (1932). Id. “According to that test, it should

be presumed that the Legislature did not regard two statutorily defined offenses to be the same if

each provision requires proof of a fact which the other does not.” Id. (internal quotations

omitted). “However, for purposes of multiple-punishments analysis, the Blockburger test is only

a tool of statutory construction — and not even an exclusive one.” Id. Double jeopardy does not

bar a defendant from being convicted of separate and distinct statutory aggravated sexual assault

offenses involving separate and distinct acts. Vick v. State, 991 S.W.2d 832, 833 (Tex. Crim.

App. 1999). Separate charges are also proper where the same offense occurred on different

dates. Hiatt v. State, 319 S.W.3d 115, 126 (Tex. App.—San Antonio 2010, pet. ref’d).

In this case, M.H. testified that the sexual assault occurred on two separate dates – once

while Delgado lived in an apartment and once after Delgado moved to a new home in November

of 2008. Count I and II are separate and distinct statutory aggravated sexual assault offenses

involving separate and distinct acts that M.H. testified occurred in Delgado’s new home. 2

Compare TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii) (West Supp. 2011) (defining aggravated

sexual assault to include a person intentionally or knowingly causing the penetration of

the mouth of a child by the sexual organ of the actor) with TEX. PENAL CODE at

§ 22.021(a)(1)(B)(iii) (defining aggravated sexual assault to include a person intentionally or

knowingly causing the sexual organ of a child to contact or penetrate the mouth of the actor).

2
M.H. testified that Delgado “put his middle in [her] mouth” at the apartment and the house. M.H. testified that
Delgado “put his mouth on [her] middle” at the apartment and the house.

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Count V also alleges separate and distinct statutory aggravated sexual assault offenses involving

separate and distinct acts that M.H. testified occurred while Delgado lived in an apartment. 3

Compare TEX. PENAL CODE at § 22.021(a)(1)(B)(i) (defining aggravated sexual assault to

include a person intentionally or knowingly penetrating the sexual organ of a child by any

means) with TEX. PENAL CODE at § 22.021(a)(1)(B)(iv) (defining aggravated sexual assault to

include a person intentionally or knowingly causing the anus of a child to contact the mouth of

the actor). Accordingly, Delgado’s conviction of Counts I, II, and V were not barred by double

jeopardy. Similarly, because a jury could find from the testimony of M.H. and the sexual assault

nurse examiner who examined M.H. that Delgado engaged in the act alleged in Count III and the

first paragraph of Count V on two different dates at both the house and at the apartment, no

double jeopardy violation resulted. 4 Hiatt, 319 S.W.3d at 126.

Delgado’s final double jeopardy complaint is that a double jeopardy violation resulted

from his conviction of Count IV, indecency with a child by touching the anus of M.H., and the

second paragraph in Count V, a continuous course of sexual abuse by, among other acts, causing

the anus of M.H. to contact Delgado’s mouth. 5 As previously noted, Delgado concedes that he

did not raise his double jeopardy claim at trial. A double jeopardy claim may be raised for the

first time on appeal only when: (1) the undisputed facts show the double jeopardy violation is

clearly apparent from the face of the record; and (2) enforcement of usual rules of procedural
3
M.H. testified that Delgado “touched my middle” with his hand at the apartment but not at the house. M.H. also
testified that Delgado put his mouth on her bottom where she goes number two at the apartment but not at the house.
4
Jennifer Degner, the sexual assault nurse examiner who examined M.H., testified that M.H. reported the last
assault occurred at Delgado’s house. M.H. reported that she was lying in bed, and Delgado pulled her underwear
down to her knees. M.H. reported that Delgado licked his index and middle fingers and rubbed her genitals.
Although M.H. testified that Delgado “touched my middle” with his hand at the apartment but not at the house, the
jury could have disbelieved her trial testimony based on her earlier report and the difficulty M.H. had in testifying at
trial.
5
M.H. testified that Delgado put his mouth on her bottom where she goes number two at the apartment but not at the
house. Degner testified that M.H. reported that Delgado put his tongue inside her butt in response to her asking if
Delgado “ever did anything to her butt.” Accordingly, the evidence does not establish that Delgado committed this
act on two different dates.

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default serves no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim.

App. 2000).

In Gonzalez, Count I of the appellant’s indictment charged aggravated robbery in three

separate paragraphs alleging alternative means of committing the offense. 8 S.W.3d at 640. The

three paragraphs were submitted to the jury disjunctively. Id. Count II of appellant’s indictment

charged injury to an elderly individual in a single paragraph. Id. Appellant was convicted of

both offenses by a general verdict. Id. “Appellant claimed for the first time on appeal that it was

possible he was multiply punished for the same offense because the injury to an elderly offense

[was] a lesser included offense of the aggravated robbery offense as set out in paragraphs one

and three and the jury’s general verdict of aggravated robbery could have rested on one of these

paragraphs.” Id. at 641. “Appellant conceded that if the jury’s general guilty verdict of

aggravated robbery rested on paragraph two, then no multiple punishments issue was presented.”

Id.

The Texas Court of Criminal Appeals held that appellant failed to establish the first prong

for not requiring error preservation because the face of the record failed to show a multiple

punishments violation since the jury’s general guilty verdict of aggravated robbery could have

rested on paragraph two. Id. at 645. In addition, the court concluded that appellant also failed to

establish the second prong for not requiring error preservation. Id. at 645-46. The court

reasoned that requiring appellant to have timely raised his multiple punishments claim in the trial

court would have served legitimate state interests because timely raising the matter in the trial

court “would have provided the trial court and the prosecution an opportunity to remove the

basis of the objection, and it also would have provided the prosecution the opportunity to obtain

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an aggravated robbery conviction based on paragraph two without the risk of an unnecessary

retrial in the face of a valid multiple punishment claim.” Id.

Similar to the analysis in Gonzalez, we hold that Delgado also has failed to meet the two

prongs required in order to raise his double jeopardy complaint for the first time on appeal. First,

the three paragraphs in Count V alleging three separate aggravated sexual assault offenses were

submitted in the disjunctive and the jury was only required to find that two of the alleged

aggravated sexual assault offenses occurred. 6 Accordingly, because the jury’s general guilty

verdict of continuous sexual abuse of children could have rested on the first and third paragraphs

of Count V, Delgado has not sustained his burden of presenting a record showing on its face a

multiple punishments violation. See id. at 645. Moreover, requiring Delgado to have timely

raised his multiple punishments claim in the trial court served legitimate state interests and is

consistent with the underlying policies of the general rules of procedural default. See id.

“Timely raising the matter in the trial court would have provided the trial court and the

prosecution the opportunity to remove the basis of the objection, and it also would have provided

the prosecution the opportunity to obtain [a conviction for continuous sexual abuse of children]

based on the [the first and third paragraphs of Count V or other allegations of sexual abuse

involving M.H. or M.D.] without the risk of an unnecessary retrial in the face of a valid multiple

6
The application paragraph of the jury charge stated:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 1st
day of June, 2008, through on or about the 1st day of November, 2008, in Bexar County, Texas,
the defendant, Adam Delgado, during a period that was 30 days or more in duration, committed
two or more acts of sexual abuse against M.D. and/or M.H., said acts of sexual abuse having been
violations of one or more of the following penal laws, including Aggravated Sexual Assault,
namely: causing the penetration of the sexual organ of M.H. by Adam Delgado’s finger, and/or by
causing the anus of M.H. to contact the mouth of Adam Delgado, and/or by causing the anus of
M.D. to contact the sexual organ of Adam Delgado, and, at the time of the commission of each of
the acts of sexual abuse, Adam Delgado was 17 years of age or older and M.D. and M.H. were
children younger than 14 years of age, then you will find the defendant guilty of continuous sexual
abuse of young child or children as charged in Count V of the indictment.

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punishments claim.” Id. at 645-46. Because Delgado failed to preserve the third double

jeopardy claim asserted in his brief, the complaint is overruled.

JURY UNANIMITY

In his third issue, Delgado argues that all of the allegations in the indictment “could have

occurred during one transactions [sic] on November 1, 2008.” Delgado then argues, “Because

multiple acts were described in somewhat vague details by [M.H.], and the evidence as to each

act was conflicting, some jurors could have relied upon one incident for conviction, while others

could have relied upon another.” Delgado further argues, “The description of the events by

[M.H.] described offenses that may not allow separate prosecutions because the conduct consist

[sic] of the same offenses, part of the same offense, or lesser included offense. Under this

application, there cannot be unanimity of multiple verdicts constituting the same offense [sic]

conduct, part of the same transaction of the conduct or of lesser included offenses.”

Jury unanimity is required in all criminal cases. Pizzo v. State, 235 S.W.3d 711, 714

(Tex. Crim. App. 2007). “Unanimity ensures that all jurors reach a consensus on the same act

for a conviction.” Id.

As previously noted, Delgado was charged with committing five separate and distinct

offenses. Although Counts I-IV charged Delgado with committing four of these offenses on or

about November 1, 2008, Count V charged Delgado with committing that offense on or about

June 1, 2008 through on or about November 1, 2008. M.H. testified that certain acts were

committed while Delgado lived in an apartment and certain acts were committed after Delgado

moved into his new home. M.H. testified that the acts with which Delgado was charged in Count

V occurred while Delgado lived in his apartment. Accordingly, Delgado is incorrect in asserting

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that all of the allegations could have occurred on November 1, 2008, which was after Delgado

moved into his house.

It appears that Delgado is attempting to mix his double jeopardy argument with his jury

unanimity argument. With regard to jury unanimity, the jury charge contained a separate

application paragraph pertaining to each count in the indictment. The jury charge also contained

separate verdict forms for each count. Finally, the jury was instructed that its verdict was

required to be unanimous. Accordingly, because the jury was required to unanimously agree that

each of the separate and distinct offenses occurred, Delgado’s third issue is overruled. See

Martin v. State, 335 S.W.3d 867, 872 (Tex. App.—Austin 2011, pet. ref’d) (noting due process

not violated by permitting a conviction based on a jury’s unanimous finding that the defendant

engaged in continuous sexual abuse of children through a course of conduct consisting of

repeated acts of sexual abuse but without requiring jury unanimity as to the individual acts that

made up that course of conduct) (citing Jacobsen v. State, 325 S.W.3d 733, 739 (Tex. App.—

Austin 2010, no pet.)).

ADMISSIBILITY OF EVIDENCE

Delgado’s fourth issue challenges the admissibility of testimony by a child protective

services investigator of statements Delgado made to him while in jail awaiting trial. In his sixth

issue, Delgado contends the trial court erred in admitting testimony by a forensic interviewer that

an abused child can still love her abuser.

A trial judge’s decision on the admissibility of the evidence is reviewed under an abuse

of discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). The

ruling will not be reversed on appeal if it is within the zone of reasonable disagreement. Id.

A. Child Protective Services Investigator

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Delgado contends that the statements he made to Santiago Garcia, a child protective

services investigator, were obtained without proper Miranda warnings while he was in jail.

Delgado contends that Garcia was acting in a law enforcement capacity when he interviewed him

because he was gathering information as to whether Delgado sexually assaulted a potential third

victim. Specifically, Delgado sought to exclude his statement admitting to sexually abusing

M.H., his niece, and M.D., one of his daughters, while denying sexually assaulting his other

daughter.

“We need not determine . . . whether [Delgado’s] statements were the product of

custodial interrogation because the statements were introduced during the State’s rebuttal and

were introduced for purposes of impeachment.” Lykins v. State, 784 S.W.2d 32, 35-36 (Tex.

Crim. App. 1989). As the United States Supreme Court has stated: “The shield provided by

Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk

of confrontation with prior inconsistent utterances.” Harris v. New York, 401 U.S. 222, 226

(1971). Because Garcia’s testimony was introduced as rebuttal evidence to impeach Delgado’s

testimony denying the sexual abuse allegations, Delgado’s complaint is overruled. See Lykins,

784 S.W.2d at 35-36.

B. Forensic Interviewer

In his sixth issue, Delgado contends the trial court erred in failing to conduct an

admissibility determination of the “relevancy and reliability” of the expert testimony of Lisa

Holcomb, a forensic interviewer who testified that an abused child can still love her abuser. In

arguing the issue, however, Delgado refers to Holcomb’s testimony “of her observations of

behavioral symptoms associated with abuse [sic] children,” and her testimony “that [M.D.]

expressed behavior that was common to children who had been sexually abused.” The State

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contends error was not preserved with regard to some of Delgado’s appellate contentions.

Therefore, before addressing the merits of this issue, we will review the objections made to the

admissibility of Holcomb’s testimony at trial.

Holcomb testified that she had been employed with the Children’s Assessment Center for

over 15 years. After graduating with a bachelor of science in behavioral science psychology,

Holcomb was employed with child protective services for three years investigating all realms of

child abuse including taking intake reports and providing on-going services to families. While

employed by child protective services, Holcomb was trained as a forensic interviewer which was

her position at Children’s Assessment Center. Holcomb testified that she interviews children

who have been the victims of sexual abuse and questions and documents their responses

regarding the abuse they suffer. Holcomb estimated that she had interviewed over 11,000

children and was qualified in the State of Texas as an expert in the area of child sexual abuse.

Holcomb testified that she was the only other person in the room while interviewing M.D.

Holcomb testified that parents are not allowed in the interview so the child does not feel undue

influence or pressure. Holcomb testified that children are sometimes reluctant to talk in front of

a parent out of fear of retaliation, of not being believed, or of not wanting to hurt the parent

because they may still love the parent and not want the parent to be distraught or sad. Holcomb

described how different children may respond to being interviewed. Holcomb testified that M.D.

was very reluctant to speak and somewhat catatonic or frozen during the interview which can be

consistent with a child who has been sexually abused. In response to the dynamics of sexual

abuse, Holcomb testified that it is very uncommon for children to disclose abuse right away due

to the shame involved or fear of what could happen to their family or siblings. Holcomb further

testified that a child disclosing abuse discloses only a “little bit” of information at a time.

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Holcomb again testified that children are afraid to make an outcry right away after which the

following exchange occurred:

Q. And the dynamics of a child who’s abused by somebody who is a
family member, say a parent, is it possible for that child to still love that parent?
A. Yes.
Q. And can you describe for the jury a little bit about that dynamic?
[Delgado’s attorney]: Your Honor, I’m going to object to this line of
testimony. We’re getting into extra testimony that this witness hasn’t been
qualified to discuss.

In a hearing outside the jury’s presence, Holcomb stated that she had testified on

children’s demeanors and the dynamics of sexual abuse and delayed disclosure on numerous

occasions. With regard to her expertise on whether a child abused by a parent could still love the

parent, Holcomb testified that she had several experiences where children have told her that they

still love the abuser. Holcomb stated, “That’s from my experiences in dealing with the children

themselves and them not wanting anything to happen to the perpetrator.” At the conclusion of

the hearing outside the jury’s presence, Delgado’s attorney renewed his objection that Howard

“is not qualified as an expert in that area.” After overruling the objection, the following

exchange occurred in the jury’s presence:

Q. All right. Now, before we took the break, I was asking you
specifically about children who have been abused by a parent, and whether or not,
based on your training and experience is it common for a child to still love that
abuser?
[Delgado’s attorney]: I’m going to object to relevance, Your Honor.
The Court: Overruled.
The Witness: Yes.
Q. And is it common or uncommon for a child to still want to spend
time with the person, in fact, who’s been abusing them?
A. Actually, it’s common.

With regard to Holcomb’s testimony about “observations of behavioral symptoms

associated with abuse [sic] children,” and “that [M.D.] expressed behavior that was common to

children who had been sexually abused,” no specific objection was made when Holcomb was

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testifying regarding these behavioral symptoms. With regard to Holcomb’s testimony that an

abused child can still love her abuser, Holcomb’s testimony was admitted without objection

when the question was first asked. Delgado raised an objection to the testimony only after

Holcomb was asked to elaborate on the dynamics. “An error in the admission of evidence is

cured where the same evidence comes in elsewhere without objection.” Valle v. State, 109

S.W.3d 500, 509 (Tex. Crim. App. 2003). Accordingly, because no objection was made when

Holcomb first testified that a child can still love her abuser, the admission of her testimony a

second time is not reversible error. 7

Moreover, three separate inquiries govern the admissibility of expert testimony: (1)

qualification; (2) reliability; and (3) relevance. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim.

App. 2006). The objection made by Delgado that resulted in the hearing outside the jury’s

presence was based on Holcomb’s qualifications. Delgado made the same objection to

Holcomb’s qualifications at the conclusion of the hearing outside the presence of the jury. On

appeal, however, Delgado also appears to be challenging the reliability of the testimony.

Although Delgado subsequently objected on the basis of relevance, Delgado never objected on

the basis of reliability. Accordingly, even if we were to consider whether the admission of

Holcomb’s testimony was erroneous in response to the second question despite no objection

being made after the question was first asked and answered, we could only consider the merits of

the issue pertaining to Delgado’s qualifications because no objection was made on the basis of

reliability at trial. See TEX. R. APP. P. 33.1(a); Pena, 285 S.W.3d at 463-64.

With regard to qualifications, qualification is a two-step inquiry. Vela v. State, 209

S.W.3d at 131. “A witness must first have a sufficient background in a particular field, but a trial

7
Moreover, we note that testimony that a child can still care for her abuser also was admitted through the testimony
of the forensic interviewer who interviewed M.H.

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judge must then determine whether the background ‘goes to the very matter on which [the

witness] is to give an opinion.’” Id. (quoting Broders v. Heise, 924 S.W.2d 148, 153 (Tex.

1996)). The expert must have knowledge, skill, experience, training, or education regarding the

specific issue before the court to qualify the expert to give an opinion on the particular subject.

Id. at 132.

In this case, Holcomb had been engaged in conducting forensic interviews involving

sexual abuse allegations for over fifteen years. She had a bachelor of science degree in

behavioral science psychology and had conducted over 11,000 interviews. In the course of the

interviews, she had experience in investigating the ongoing relationship between the child and

his or her abuser and testified that children told her during their interviews that they still loved

the abuser. Therefore, even if we were to consider whether admitting Holcomb’s testimony was

error, we would hold that Holcomb’s testimony provided a sufficient basis for the trial court to

determine she was qualified to testify, and the trial court did not abuse its discretion in admitting

her testimony. See Vela, 209 S.W.3d 132-33; cf. Robinson v. State, No. 06-99-00165-CR, 2000

WL 1532236, at *8 (Tex. App.—Texarkana Oct. 18, 2000, no pet.) (overruling contention that

attorney rendered ineffective assistance by failing to object to testimony by child protective

services supervisor with master’s degree in counseling and guidance that sexually abused

children will continue to love their abuser because “State would have undoubtedly been able to

qualify him as an expert” if objection was made) (not designated for publication).

MILITARY UNIFORM

Delgado contends the trial court abused its discretion in denying his motion to wear his

military uniform during trial. In support of this contention, Delgado cites a case relating to

whether a defendant’s right to a fair trial would be violated if required to appear at trial in prison

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clothes. As the State notes in its brief, however, Delgado admitted that his military uniform was

not the only clothing he had other than his jail uniform. At the hearing on Delgado’s motion, the

State argued that Delgado’s military uniform would be prejudicial to the State as an effort to

bolster Delgado’s credibility. The trial court granted Delgado the right to wear civilian clothes

but not his military uniform.

Delgado cites no authority for the proposition that a trial court abuses its discretion in

denying a defendant’s request to appear at trial in military uniform. We hold that the trial court

did not abuse its discretion. “To hold otherwise would require us to entertain the notion that the

Due Process Clause . . . provide[s] a defendant the right to appear before the jury in clothes of his

choice, and perhaps of a particular style.” Johnson v. State, 838 S.W.2d 906, 909 (Tex. App.—

Corpus Christi 1992, pet. ref’d); see also Lantrip v. State, 336 S.W.3d 343, 351-52 (Tex. App.—

Texarkana 2011, no pet.) (holding trial court did not abuse its discretion in not allowing

defendant to wear camouflage clothing).

CONCLUSION

The trial court’s judgment is affirmed.

Phylis J. Speedlin, Justice

DO NOT PUBLISH

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