Affirmed and Opinion Filed July 12, 2018 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-00432-CR JUAN MEDINA BUENO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F-1160087-V 

### MEMORANDUM OPINION Before Justices Bridges, Brown, and Boatright Opinion by Justice Bridges A jury convicted appellant Juan Medina Bueno of aggravated sexu al assault of a child under fourteen years of age and sentenced him to forty-five yea rs’ confinement and assessed a $10,000 fine. In three issues, he argues (1) the evidence is i nsufficient to support his conviction; (2) the trial court erred by de nying his motion for mistrial du e to juror misconduct; and (3) the trial court erroneously admitted extra neous offenses. We affirm. Background When complainant was in the third grade, appellant and Mother s eparated. Complainant lived with Mother and her younger brother, but spent weekends w ith appellant. One particular Friday, complainant recalled appellant being dru nk when he picked them up. Later that night, complainan t and her brother fell asleep in appellant’s bedroom. Complainant–2– woke up when appellant came in, and she realized her brother wa s no longer in the room with her. 1 Appellant began sexually assaulting complainant. He stopped at one point, and complainant escaped to the bathroom. Appella nt pulled her back to the bedr oom, and then perpetrated the aggravated sexual assault. Once appellant left the room, complainant loaded an air gun and retrieved a large barbecue fork and “heavy wrench thingy” from the kitchen. She returned to the bedroom and stayed awake all night prepared to defend hers elf if appellant returned. Complainant did not tell anyone w hat happened for several weeks . She eventually shared some details with her cousin, with two adults that worked at he r church, and with her school counselor. She eventually told her mother, who notified police . Complainant then underwent a physical exam and gave a forensic interview at the Dallas Child ren’s Advocacy Center. Appellant was arrested and charge d with aggravated sexual assau lt of a child under the age of fourteen. The jury convicted him and sentenced him to forty -five years’ confinement and assessed a $10,000 fine. Sufficiency of the Evidence In his first issue, appellant ar gues the evidence is legally i nsufficient to support his conviction because (1) complainant fabricated the story to get attention; (2) she claimed to have screamed loudly during the assaul t yet her brothe r, who was sle eping nearby, did not hear her; (3) no physical evidence supported her allegations; and (4) she bel ieved she saw ghosts and spirits, which indicated she could not d istinguish fact from fiction. T he State responds these were credibility issues left to the jury, and the jury believed comp lainant; therefore, the evidence was legally sufficient to supp ort appellant’s conviction.

1 She later saw her brother asleep on the living room couch. Sh e testified she screamed his name as loudly as she could during the assault. An officer who investigated the a llegation testified the brothe r “provided no information that would corroborate her story.”–3– In reviewing the legal sufficiency of the evidence, we review t he evidence in the light most favorable to the prosecution. Jackson v. Virginia , 443 U.S. 307, 319 (1979). The inquiry is whether any rational trier of fact could have found the element s of the offense beyond a reasonable doubt. Billy v. State , 77 S.W.3d 427, 428 (Tex. App.—Dallas 2002, pet. ref’d). The trier of fact is the sole judge of witness cred ibility and the weight to be g iven her testimony. Id . at 429. The trier of fact may choose to beli eve or disbelieve all or any pa rt of any witne ss’s testimony. Id

. The State indicted appellant for aggravated sexual assault of a child younger than fourteen pursuant to section 22.021 of the penal code. T EX

. P ENAL C ODE A NN . §22.021 (West Supp. 2017). Here, complainant’s testimony alone supports the offense as all eged in the indictment and is sufficient by itself to support conviction for aggravated sexua l assault. See T EX

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NN . art. 38.07; Revels v. State , 334 S.W.3d 46, 52 (Tex. App.—Dallas 2008, no pet.). In addition to complainant’s testimony, the jury heard from Kat lyn Manchac, the designated outcry witness. She t estified that complainant told her about the sexual assault. Manchac believed complainant because, “She wasn’t the kind of g irl that just went around looking for attention. She was very qui et. She kept to herself.” When officers searched appellant’s home, they recovered the air gun and grilling fork complainant used for protection the night of the offense in the locations she referenced in her forensic interview. The lead detective believed an aggravated sexual assault of a child had occurred after corroborating complainant’s allegations with oth er witnesses and searching appellant’s apartment. Complainant admitted she believed in and saw spirits. Her ther apist testified she was not concerned by complainant’s admission because the spirits “were not threatening to her, were not telling her to do things, were not creating a scary environment .” The trier of fact was the sole–4– judge of the weight and credibility of this evidence and decide d complainant was credible. Billy, 77 S.W.3d at 429. Complainant admitted she was being bullied at school around the time she accused appellant of the offense, and she wanted someone to pay attenti on to her. She admitted liking the attention she received from doctors and therapists after she ma de her outcry, but testified she was telling the truth about the sexual assault. Again, the jury he ard this evidence and decided complainant was credible. Billy, 77 S.W.3d at 429. As to a lack of physical evidence linking appellant to the ass ault, there is no such requirement that complainant’s testimony be corroborated by med ical or physical evidence. See
Flores v. State , No. 05-06-01297-CR, 2008 WL 2346309, at *4 (Tex. App.—Dallas June 10, 2008, no pet.) (not designated for publication). Rather, the lack of such evidence is not unusual in cases of sexual abuse. See Dozier v. State , No. 05-03-01503-CR, 2004 WL 1682360, at *2 (Tex. App.— Dallas July 28, 2004, pet. ref’d) (mem. op., not designated for publication); see also Murray v.
State , 24 S.W.3d 881, 887 (Tex. App.—Waco 2000, pet. ref’d). The do ctor who reviewed complainant’s medical records and testified explained one reaso n for the lack of evidence is because that area of the female body heals quickly. 

### Accordingly, complainant’s credibility, the lack of physical evidence , and the possible motive of complainant to fabricate the story were all before th e jury, and the jury determined appellant was guilty of the offense. After viewing the evidenc e in the light most favorable to the verdict and giving the appropriate deference to the jury’s credibility determinations, we conclude the evidence was legally sufficient to support the off ense as charged in the indictment. We overrule appellant’s first issue.–5– 

### Motion for Mistrial In his second issue, appellant argues the trial court abused it s discretion by denying his motion for mistrial after reported juror misconduct. The State responds appellant’s issue is not preserved for review, or alternat ively, the trial court did not abuse its discretion by overruling the motion because appellant failed to establish any misconduct. Pamela Womack, an employee with the Dallas County District Atto rney’s Office, reported to the trial court that she overhead two female voices in the j ury room discussing what she thought was testimony from the trial. She did not actually see the wom en to confirm whether they were in fact jurors. Womack summari zed what she heard as follows: First thing I heard was somebody said something about she was crying, and then something about, I believe her. And then t hey talked about how the mother of the victim was only 14 or 15 whe n she met the defendant and he was 32 and wanted to know why that wasn’t an offense and something w as done about it at that time. 2 And then somebody mentioned that that was okay in Mexico and that that was kind of a standard thing. And then mentioned something about that in Africa it’s – it’s that way, too, and s tarted talking about, you know, if girls get their periods when they’r e, like, 8 or 9 years old, that means they’re a woman. And that was pret ty much all I heard. Womack believed jurors were discussing the evidence when trial was still in progress and not all jurors were present. However, she admitted she did not know wh o else may have been in the room because she only heard two voices and never looked into the jur y room. Defense counsel argued the jurors violated the court’s instruct ions not to discuss the testimony until after evidence cl osed and not to deliberate unl ess all jurors wer e present. Counsel contended appellant could not re ceive a fair trial and the juro rs’ actions violated appellant’s constitutional rights under the 5th, 6th, and 14th amendments. The State questioned whether any

2 Mother testified she was fourteen and appellant was thirty-two when they met.–6– misconduct occurred and argued a jury instruction would cure an y alleged misconduct. The trial court agreed and overruled a ppellant’s objections. When the jury returned, the trial judge warned he did not know if his prior admonishments were being followed. He then ins tructed, “You are not to discu ss this case or anything you saw or heard during the testimony until a fter you have received all of the evidence in this case. Do I make myself clear on that point?” One jury asked, “We can’t discuss it amongst each other?” The trial judge then expounded and clarified his instructions to emphasiz e that they were not to deliberate until the evidence was closed, lawyers made closing arguments, they received the charge from the court, and they were released to deliberate. The trial judge a gain emphasized all twelve jurors must be present during discussions. We begin by addressing the State’s preservation argument. To p reserve an issue for appellate review, the complaining party must make a timely, spe cific objection and obtain a ruling on the objection. T EX

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. P. 33.1. In addition, the argument on appeal must correspond t o the objection made at trial. Broxton v. State , 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). In other words, “An objection stating one legal theory may not be used to support a different legal theory on appeal.” Id . (citing Johnson v. State , 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)). At trial, appellant based his mo tion for mistrial on allegation s that two jurors discussed the case outside the prese nce of other panel m embers and before rec eiving all the evidence, which he argued violated his constitutiona l rights under the 5th, 6th, a nd 14th amendments. However, on appeal, he argues the trial co urt erred by ove rruling his motio n for mistrial because the two jurors displayed bias or partiality. W e agree with the State that app ellant’s trial obj ection does not comport with his issue on appeal. Id . Because the basis of appellant’s complaint regarding the trial court’s error in denying hi s request for mistrial does no t comport with the basis raised in the trial court, appellant’s argument is waived. See Broxton , 909 S.W.2d at 918; see also Rivera v.–7– State , No. 08-05-00339-CR, 2007 WL 766129, at *2 (Tex. App.—El Paso Mar. 15, 2007, no pet.) (not designated for publication). Even if we concluded appellant preserved his issue for review, “mistrials are an extreme remedy for prejudicial events occurring during the trial proces s.” Bauder v. State , 921 S.W.2d 696, 698 (Tex. Crim. App. 1996), overruled on other grounds by Ex parte Lewis , 219 S.W.3d 335 (Tex. Crim. App. 2007). Two unide ntified individuals who may h ave been discussing the case in the juror room is not the type of “emotionally inflammatory” ev ent that could not be cured by instructions from the trial court. Id . Rather, when curative instructions are given, “our system presumes that judicial admonishments to the jury are efficaciou s.” Id .; Ford v. State , 14 S.W.3d 382, 394 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Here, the trial court admonished the jurors about discussing the case when they were not all togethe r and before they received all the evidence. The court provided fur ther explanation when a juror asked a specific que stion requiring clarification. We presume the jurors followed the trial court’ s instructions. Id . Therefore, the trial court did not abuse its discreti on by overruling appellant’s mo tion for mistrial. Appellant’s second issue is overruled.
Admission of Extraneous Offenses In his third issue, appellant argues the trial court abused its discretion by admitting extraneous offenses. The State responds appellant failed to pr eserve his issue for review. Alternatively, the State argues a ppellant received notice of it s intent to introduce such evidence, but error, if any, was harmless. During the outcry hearing, Manchac testified complainant told h er about the aggravated sexual assault. The State asked if complainant provided any ot her information and Manchac said, “No, I don’t think so.”–8– At the conclusion of the hearing, defense counsel asked that Ma nchac’s testimony “be limited only to what she testified here today . . . .” The Sta te acknowledged it did not “intend on going beyond what she has testifie d to here today.” The court granted appellant’s request and told the parties to approach the be nch if something came up during t rial. During trial, Manchac testified that appellant had been touchin g complainant for years. Defense counsel immediately objected, the court told the jury t o disregard the answer, and the court held a brief hearing out side the jury’s presence. Defense counsel objected to Manchac’s testimony based on hearsa y and “prior acts under 404.” The trial court overru led the objections. We first address the State’s preservation argument. To preserv e an issue for appellate review, the complaining party must make a timely, specific obje ction and obtain a ruling on the objection. T EX

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. P. 33.1. In addition, the argument on appeal must correspond t o the objection made at trial. Broxton , 909 S.W.2d at 918. At trial, appellant objected to M anchac’s testimony because it was hearsay and implicated prior acts under rule 404. See T EX

. R. E VID . 404. On appeal, he argues the trial court abused its discretion by admitting extraneous offenses in violation of art icle 38.37 of the code of criminal procedure. See T EX

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. P ROC . art. 38.37 (West 2018). Because appellant’s complaint on appeal does not comport with his trial objection, appellant’ s argument is waived. See Broxton , 909 S.W.2d at 918; see also Ruiz v. State , No. 10-16-00247-CR, 2018 WL 1750826, at *5 (Tex. App.—Waco Apr. 11, 2018, no pet.) (mem. op., not designated for publication) (issue not preserved when appellant raised complaint under rule 404 but ob jected at trial under article 38.37). Even if we concluded appellant preserved his issue for review a nd we assumed the trial court abused its discretion by admitting the testimony, the err or was cured. “An error [if any] in the admission of evidence is cured where the same evidence come s in elsewhere without–9– objection.” Lane v. State , 151 S.W.3d 188, 193 (Tex. Crim. App. 2004). Here, Mother tes tified to similar evidence without objec tion. Mother said complainant told her the night of the offense was not the first time appellant a cted inappropriately, but “th ere were other times.” Because substantially similar evidence was admitted without objection, error, if any, was cured. See
Estrada v. State , 313 S.W.3d 274, 302 n.29 (Tex. Crim . App. 2010) (noting any e rror was harmless when “very similar” evidence admitted without objection). Appe llant’s third issue is overruled.
Conclusion The trial court’s judgment is affirmed.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JUAN MEDINA BUENO, Appellant
No. 05-18-00432-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 292nd Judicial District Court, Dallas County, Texas Trial Court Cause No. F-1160087-V. Opinion delivered by Justice Bridges. Justices Brown and Boatr ight participating. Based on the Court’s opinion of t his date, the judgment of the trial court is AFFIRMED

. Judgment entered July 12, 2018.