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 
Branch v. State Page 2

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. 

 

1 To 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 3

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 4

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 lesserincluded 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 5

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 6

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 

 

3 The record does not reflect that appellant asked for and obtained a running objection regarding 

the complained-of statements.
Branch v. State Page 7

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 8

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 9

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]