MEMORANDUM OPINION
No. 04-11-00077-CR
Ricardo A. ZAVALA, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 7, Bexar County, Texas
Trial Court No. 295771
The Honorable Monica A. Gonzalez, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebecca Simmons, Justice
Delivered and Filed: December 7, 2011
AFFIRMED
Appellant Ricardo A. Zavala Jr. appeals his conviction for assault causing bodily injury.
Zavala raises two issues on appeal: (1) the trial court erroneously admitted expert witness
testimony that improperly bolstered the testimony of the assault victim; and (2) the trial court’s
admission of hearsay and improper extraneous offense evidence violated Zavala’s Sixth
Amendment right of confrontation. We affirm the trial court’s judgment.
04-11-00077-CR
BACKGROUND
While driving home from a baby shower, Zavala got into an argument with his then-
girlfriend and later-wife, Kathryn Palomino. Zavala ordered Palomino out of the truck. She
refused. Palomino testified that Zavala pulled her out of the vehicle, threw her against the truck,
and choked her until she lost consciousness. After regaining consciousness in a pool of her own
blood, Palomino called her sister, a nurse, for medical advice. Her sister advised her to go to a
hospital. Palomino called a friend who drove her to the hospital. She told neither her sister nor
her friend how she was injured. During the medical exam, Palomino explained that she was
unsure how she was injured and that she might have fallen. Believing Palomino’s head injury to
be more consistent with an assault, the hospital staff called police. Palomino testified that she
told the responding officer that she was unsure if she fell or if she was punched.
Zavala was arrested over a year later. Within a week after posting bond, Zavala drove
Palomino to his attorney’s office where Palomino signed an affidavit of non-prosecution. On
direct examination, Palomino testified that the statement she signed in the affidavit was false and
was wholly written and typed by either Zavala’s attorney or his legal secretary. Palomino stated
that she signed the affidavit because she loved Zavala and did not want him to get in trouble. On
cross-examination, she was accused of, inter alia, (1) making the story up because she was
jealous that Zavala cheated on her, (2) being drunk at the time she was injured, and (3)
committing perjury. Zavala’s counsel also had Palomino read the affidavit of non-prosecution
into the record.
Zavala testified at trial that on the night of the incident, Palomino was drunk and had
swung at him when he took her home. He explained that he pushed her against the truck after
she attempted to hit him, and as he let go, she fell face-first on the driveway. After the defense
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rested and over Zavala’s objection, the State called two rebuttal witnesses. The first was Maria
Falcon, a licensed counselor. Her expert testimony explained why some women choose not to
report acts of domestic violence. The State then called Sergeant Terry Mason to rebut Zavala’s
claim that he never assaulted Palomino or his ex-wife.
BOLSTERING THROUGH EXPERT WITNESS TESTIMONY
In his first point of error, Zavala contends the trial court erred in admitting the testimony
of Maria Falcon, a licensed counselor who worked with victims of family violence. Over
objections, Falcon testified that it is common for a victim who has been assaulted by a husband
or boyfriend to change her story and to not tell friends or family about the abuse. Falcon did not
give an opinion as to Palomino’s truthfulness. Zavala argues that because Palomino never
recanted allegations of abuse and because she was never impeached, Falcon’s testimony was
inadmissible bolstering. Zavala does not argue on appeal that Falcon was unqualified or that her
expert testimony was insufficiently reliable under Texas Rule of Evidence 702.
A. Standard of Review
A trial court’s ruling on the admissibility of expert testimony is reviewed under an abuse
of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000);
Lagrone v. State, 942 S.W.2d 602, 616 (Tex. Crim. App. 1997).
B. Applicable Law
Improper “bolstering” occurs when a party offers “any evidence the sole purpose of
which is to convince the factfinder 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.’” Cohn v. State, 849 S.W.2d 817, 819–20 (Tex. Crim. App. 1993) (alteration in
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original) (quoting former TEX. R. CRIM. EVID. 401). “[T]he State may not bolster or support its
own witnesses unless they have been impeached on cross-examination.” Farris v. State, 643
S.W.2d 694, 697 (Tex. Crim. App. 1982) (citing Pless v. State, 576 S.W.2d 83 (Tex. Crim. App.
1978)). The fact that expert testimony may tend to bolster or support a particular witness’s
credibility is not the proper test for determining admissibility; rather, the proper test “is whether
the expert’s testimony, if believed, will assist the untrained layman trier of fact to understand the
evidence or determine a fact in issue, and whether it is otherwise admissible under general rules
of relevant admissibility.” Duckett v. State, 797 S.W.2d 906, 914, 917 (Tex. Crim. App. 1990)
(citing TEX. R. EVID. 702), disapproved on other grounds by Cohn v. State, 849 S.W.2d 817
(Tex. Crim. App. 1993) (disapproving Duckett to the extent Duckett may be read as requiring
impeachment prior to the admission of substantive evidence offered by an expert witness).
Expert testimony may aid the jury’s decision, but the testimony may not replace that
decision. Duckett, 797 S.W.2d at 914, 920. Expert testimony is inadmissible under Rule 702
when the expert offers a direct opinion on a witness’s credibility. Yount v. State, 872 S.W.2d
706, 709 (Tex. Crim. App. 1993).
C. Analysis
The record supports the conclusion that Palomino was impeached. During closing
arguments, defense counsel stated, “I don’t take fondness of calling [Palomino] a liar, a cheater,
a thief, but that’s what she is.” This statement sums up Zavala’s defensive theories presented
throughout the trial. Zavala relied on the affidavit of non-prosecution as an accurate account of
the incident. Counsel for Zavala highlighted Palomino’s inconsistent testimony by having her
read her affidavit of non-prosecution into the record. Palomino also admitted (1) that she told
her friend she did not know how she was injured, and (2) that she lied to the doctor when she
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said she did not know how she sustained the injuries. Zavala’s counsel engaged in a vigorous
cross-examination that cannot be characterized as mild. See Duckett, 797 S.W.2d at 919
(determining a witness was effectively impeached when much of the impeachment evidence
focused on inconsistent statements made by the witness); cf. Farris v. State, 643 S.W.2d 694,
696–97 (Tex. Crim. App. 1982). Zavala relies on Farris, where the court held the admission of
expert testimony was harmful when the complainants were not first impeached. Farris, 643
S.W.2d at 697. The court noted that the cross-examination of the complainants was “far from
being vigorous in nature [and] was extremely mild.” Id. at 696. The court also noted that any
attempted impeachment was related to matters that were not material and were totally unrelated
to the bolstering testimony of the expert witness. Id. at 697. In this case, the cross-examination
was vigorous and impeached Palomino with multiple inconsistent statements. As a result, the
trial court did not err in admitting Falcon’s testimony over Zavala’s objections of improper
bolstering.
Relying on our holding in Scugoza, Zavala also argues that before expert testimony is
admitted, a complainant must recant an affirmative allegation of abuse, and, conversely, expert
testimony is not admissible when a complainant recants a prior affidavit of non-prosecution. See
Scugoza v. State, 949 S.W.2d 360, 363 (Tex. App.—San Antonio 1997, no pet.). We do not
agree with this narrow interpretation. In Scugoza, an assault victim initially reported to police
that her husband had assaulted her; however, at the husband’s trial, the wife recanted her original
accusation. Id. at 361. We did not limit the admissibility of expert testimony on spousal abuse
to situations where abuse victims recanted affirmative allegations of abuse. Rather, we noted
that an expert’s testimony regarding patterns of spousal abuse is admissible if it is “useful to the
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jury in discerning [the complainant’s] credibility as it helped to explain inconsistencies between
[her] trial testimony and her previous report to [an o]fficer.” Id. at 363.
Falcon explained to the jury the reasons why women who have been assaulted by their
husbands or boyfriends change their stories and why they do not report instances of abuse.
Falcon explained technical terms, and she explained that physical, emotional, and psychological
difficulties contribute to a victim’s refusal to report abuse and to a victim’s tendencies to change
her story. This testimony helped explain why Palomino refused to report the abuse to her
friends, her family, hospital personnel, and the responding officer, and it also helped explain why
Palomino recanted her affidavit of non-prosecution. See id. Falcon’s testimony did not address
the specific abusive injuries to Palomino, nor did Falcon directly express an opinion regarding
the truthfulness of Palomino’s testimony. See Cohn v. State, 849 S.W.2d 817, 818 (Tex. Crim.
App. 1993); Scugoza, 949 S.W.2d at 363. Therefore, the trial court did not abuse its discretion in
admitting Falcon’s testimony. See Scugoza, 949 S.W.2d at 363. Zavala’s first point of error is
overruled.
RIGHT OF CONFRONTATION AND EXTRANEOUS OFFENSE EVIDENCE
In his second point of error, Zavala contends that his Sixth Amendment right to
confrontation was violated when Sergeant Mason offered evidence regarding an alleged assault
of Zavala’s ex-wife. Zavala also argues that the trial court abused its discretion in admitting
extraneous evidence of cohabitation and adultery.
A. Standard of Review
A trial court’s ruling to exclude or admit evidence is reviewed for an abuse of discretion.
De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Montgomery v. State, 810
S.W.2d 372, 379 (Tex. Crim. App. 1990). A reviewing court will uphold the trial court’s ruling
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so long as it was within the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391.
However, we review de novo whether a testimonial statement of a non-testifying declarant was
erroneously admitted into evidence. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
B. Sixth Amendment Right of Confrontation
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him . . . .” U.S. CONST. amend. VI. “[T]he admission of a hearsay
statement made by a non-testifying declarant violates the Sixth Amendment if the statement was
testimonial, and the defendant lacked a prior opportunity for cross-examination.” Wall, 184
S.W.3d at 734 (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)).
C. Analysis
Sergeant Mason was called as a witness to rebut “the false impression” Zavala left with
jurors when Zavala stated he never assaulted Palomino or his ex-wife and that he never
committed adultery while married to Palomino. Mason was supervising a collaborative
investigation by the military that was inquiring into the alleged assault of Palomino and Zavala’s
possible extramarital affairs and cohabitation with a junior officer. Mason served in the same
Army company as Zavala but had no personal knowledge of any acts of violence by Zavala.
1. Evidence of Adultery
During trial, Mason testified that the investigation revealed Zavala had an extramarital
affair and was “cohabiting” with someone else while he was still married. Zavala argues that
Mason’s reference to cohabitation and adultery was not probative and was greatly prejudicial.
We need not address this issue because Zavala failed to preserve his claim of error. While
Zavala objected to the first question of adultery and cohabitation, he failed to object when the
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same question was asked again five questions later. See Ethington v. State, 819 S.W.2d 854,
859–60 (Tex. Crim. App. 1991).
2. Evidence of an Extraneous Assault
The gist of Zavala’s Sixth Amendment argument is that Sergeant Mason offered
inadmissible extraneous hearsay evidence regarding the assault of his ex-wife. He contends that
evidence of a possible assault on his ex-wife was testimonial in nature, and that he was deprived
of the opportunity to cross-examine his ex-wife.
During direct examination, Zavala voluntarily stated that he had never assaulted his wife
(Palomino), or his ex-wife. In response to his attorney’s question about his arrest for assaulting
Palomino, Zavala stated that he initially thought the criminal charges were brought by his ex-
wife. During rebuttal, the State asked Mason, “If [Zavala] told this jury that he did not assault
his wife or his ex-wife, would that be—would you agree with that or disagree?” Mason
answered, “I would disagree.” The court sustained Zavala’s speculation objection.
Unlike in Crawford and Wall, Mason never testified as to any testimonial statements
made by Zavala’s ex-wife. In fact, Mason never mentioned Zavala’s ex-wife. Mason merely
answered a vague, ambiguous question. Mason’s subsequent testimony revealed that his answers
to the rebuttal questions were based solely on the military’s investigation of the alleged assault
on Palomino, the alleged extramarital affairs, and cohabitation by Zavala. Mason’s testimony
cannot be construed as offering Zavala’s ex-wife’s testimonial declaration. See Coble v. State,
330 S.W.3d 253, 289–90 (Tex. Crim. App. 2010) (holding that there was no violation of the right
of confrontation where there is no out-of-court statement).
Zavala also argues on appeal that admission of the same evidence regarding his ex-wife
was unfairly prejudicial and greatly outweighed the probative value of Mason’s third-party-
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hearsay testimony. See TEX. R. EVID. 403. Again, Mason’s testimony cannot be construed as
offering testimony regarding Zavala’s ex-wife; therefore, we need not analyze Mason’s
testimony about an extraneous offense against his ex-wife under Rule 403.
Because the trial court never admitted a hearsay statement made by Zavala’s ex-wife, the
rebuttal witness’s testimony did not violate Zavala’s Sixth Amendment right of confrontation.
See Crawford v. Washington, 541 U.S. 36, 51 (2004); Wall v. State, 184 S.W.3d 730, 734 (Tex.
Crim. App. 2006). Therefore, Zavala’s second point of error is overruled.
CONCLUSION
Reviewing the record under the appropriate standards of review, we hold that the trial
court did not abuse its discretion in admitting the expert testimony of Maria Falcon.
Additionally, we hold the admission of Sergeant Mason’s testimony related to the investigation
did not violate Zavala’s Sixth Amendment right of confrontation. Therefore, we affirm the trial
court’s judgment.
Rebecca Simmons, Justice
DO NOT PUBLISH
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