Affirmed; Opinion Filed December 19, 2014.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-01212-CR

SERGIO URESTI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 4

Dallas County, Texas

Trial Court Cause No. F-1112542-K

OPINION

Before Justices FitzGerald, Lang, and Brown

Opinion by Justice FitzGerald

A jury found appellant guilty of continuous sexual abuse of a child under the age of 

fourteen and assessed his punishment at thirty-five years’ imprisonment. In two issues on appeal, 

appellant asserts the trial court erred in admitting his wife’s testimony concerning their sexual 

relationship and in admitting a chart setting forth the instances of sexual abuse described in the 

complaining witness’s testimony. Concluding appellant’s arguments are without merit, we affirm 

the trial court’s judgment.

BACKGROUND

Appellant began sexually abusing his daughter in their home when she was eight or nine 

years old and in the third grade. On the first occasion, appellant forced his daughter (the 

complainant) to watch a pornographic movie and performed oral sex on her. The sexual abuse 

continued until the complainant was in seventh grade. Throughout that period, appellant 
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performed oral sex on the complainant and forced her to perform oral sex on him. When the 

complainant was ten or eleven years old, appellant inserted his penis into her vagina. Appellant 

would come to the complainant’s room at night and rub her vagina. On other occasions, 

appellant forced the complainant to fondle his penis.

At some point, the complainant told two of her school friends about the abuse. When she 

was thirteen, she told her mother, Aracely Hernandez. Although Hernandez wanted to go to the 

police, the complainant persuaded her not to do so because she was afraid her mother would be 

deported or that the family would be unable to support itself.

About two weeks after the complainant told her mother about the sexual abuse, on a 

Friday afternoon, appellant caught the complainant holding hands with a boy outside her school.

When they arrived home, appellant slapped the complainant, pulled her hair, and called her a 

“stupid bitch.” The following Monday, the complainant reported the sexual abuse to her school 

counselor. The police were notified and appellant was eventually arrested and charged.

The complainant testified at length about the sexual abuse at trial. The State also 

presented testimony of the complainant’s childhood best friend, the school counselor, a forensic 

interviewer from the Children’s Advocacy Center, the complainant’s mother, a physician from 

the hospital where a sexual assault exam had been performed, the detective assigned to the case, 

and a counselor who provided the complainant with therapy following her outcry. Appellant 

presented no witnesses. The defensive theory was that the complainant fabricated the allegations 

because she was angry with appellant for punishing her for interacting with a boy.

The jury found appellant guilty of continuous sexual abuse of a child under fourteen and 

assessed punishment at thirty-five years’ imprisonment. Appellant timely perfected this appeal.
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ANALYSIS

Admission of the Chart

In his second issue, appellant complains the trial court erred in admitting a chart made by 

the prosecutor setting forth the instances of sexual abuse testified to by the complainant. 

Specifically, appellant asserts that a chart summarizing evidence that is already before the jury is 

not admissible under rule 1006 of the rules of evidence, constitutes improper bolstering of the 

complainant’s testimony, and circumvents the requirements of article 36.28 of the code of 

criminal procedure. The complained-of exhibit is not part of the record on appeal and there is no 

discussion of its contents on the record. But appellant posits that if we assume the exhibit was 

correctly described at the time it was offered into evidence, “the chart was likely erroneously 

admitted.”

Even if we were able to determine error based on the assumptions appellant advances, the 

issue has not been preserved for our review. When the exhibit was offered into evidence at trial, 

appellant’s sole objection was that the chart was “hearsay.” It is well-established that a complaint 

on appeal must comport with the objection made at trial; otherwise any error is waived.1

 

Appellant’s argument on appeal does not comport with the objection asserted at trial. Therefore, 

appellant’s complaint about the admission of the chart has been waived. Appellant’s second issue 

is overruled.

Admission of Testimony Concerning Appellant’s Sexual Relationship With His Wife.

In his first issue, appellant argues the trial court erred in admitting his wife’s testimony 

concerning their sexual relationship. According to appellant, his sexual proclivities were not 

relevant, the probative value of the evidence was outweighed by the danger of unfair prejudice, 

and the evidence constituted improper extraneous offense and character evidence. Because 

 1 Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).
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appellant did not raise a rule 404(a) or 404(b) objection at trial, we consider only appellant’s 

complaint as to relevance.2

We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard.3 We will not reverse a trial court’s ruling unless that ruling falls outside the 

zone of reasonable disagreement.4 Likewise, we give deference to a trial court’s determination 

that the probative value of the evidence is not outweighed by the danger of unfair prejudice.5

“All relevant evidence is admissible, except as otherwise provided by Constitution, by 

statute, by [the Texas Rules of Evidence], or by other rules prescribed pursuant to statutory 

authority.”6 “Evidence which is not relevant is inadmissible.”7 “Relevant evidence” is “evidence 

having any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

evidence.”8

At one point during the direct examination of Hernandez, the State said, “I want to ask 

you about your sex life with [appellant].” Defense counsel objected, stating, “Judge, I’m going to 

object to the relevance of that to this.” Both counsel then engaged in an off-the-record 

conversation with the judge at the bench. The judge called for a ten minute break. After the 

break, before the jury returned, the judge stated, “All right. Basically, the whole thing would be 

 2 There is also no indication appellant objected that the probative value was outweighed by the danger of unfair prejudice, or that the State relied 

on rule 403 to support admission of the testimony. See TEX. R. EVID. 403. Nonetheless, the trial court admitted the testimony on this basis.

3 Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006).

4 Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).

5 Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

6 TEX. R. EVID. 402. 

7 Id.

8

TEX. R. EVID. 401. 
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weighing the probative value versus the prejudicial affect. The probative does outweigh the 

prejudicial, so I am going to allow it.”9

When the questioning resumed, the State asked Hernandez why she and appellant didn’t 

have sex frequently. Hernandez stated that sometimes appellant told her she was fat and ugly and 

that she had lost something. The following exchange ensued:

A. No. He - - I don’t know. He would tell me before I was - - I used to 

smell like a little girl. 

Q. He would tell you, you didn’t smell like a little girl anymore, that you 

lost that? 

A. Uh-huh. 

Q. And that would be a reason he wouldn’t want to have sex with you? 

A. It was either because he had prostate issues or it was normal not to be 

so intimate anymore. 

Q. So when you had sex would he ever say anything weird to you? 

A. Well, yea, sometimes he would tell me that he wanted me to be with 

another woman, and they were just fantasies. And he would also ask me if 

I had started having sex when I was younger, like, maybe 12 or 13-yearsold. 

Q. He would ask you if you started having sex then? 

A. He would ask me when we had sex sometimes. 

Q. I’m unclear about what you’re saying. Are you saying during sex he 

was asking you to tell him that? 

A. When we had sex he would ask me if I had had sex when I was 10-

years-old, 11, 12, and to answer him yes. And if it was with an adult? 

Q. So this is while y’all are actually having sex, he’s wanting you to say if 

you had sex at age 9 or 10 with an older man? 

A. He would ask me when we had sex. 

 9 Rule 403 provides that: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” 

TEX. R. EVID. 403.
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Q. So he wanted you to say - -

A. He would ask me how old I was when I had sex for the first time? 

Q. So he would want you to say yes to the questions about you having sex 

when you were 9 or 10? 

A. He would ask me at what age, whether it was 12, 11, or when.

Assuming without deciding that the trial court abused its discretion in admitting the 

above testimony, we cannot conclude appellant was harmed by its admission. A violation of 

evidentiary rules resulting in the erroneous admission of evidence is nonconstitutional error, 

subject to a harm analysis under rule 44.2(b).10 Any nonconstitutional error that does not affect 

substantial rights must be disregarded.11 A substantial right is affected when the error had a 

substantial and injurious effect or influence in determining the jury’s verdict.12 A criminal 

conviction should not be overturned for nonconstitutional error if the appellate court, after 

examining the record as a whole, has fair assurance the error did not influence the fact-finder, or 

had but a slight effect on its verdict.13

In determining the harm, we consider the existence and strength of other evidence, the 

emphasis given to the erroneously admitted evidence, and any limiting instructions.14 Here, there 

were no limiting instructions specific to the complained-of testimony.15 And after the testimony 

was elicited, the State referenced the testimony again in closing argument, characterizing 

appellant’s proclivities with his wife as “sick” and “disgusting.” Nonetheless, the evidence 

against appellant was overwhelming.

 10 See TEX. R. APP. P. 44.2(b); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). 

11 TEX. R. APP. P. 44.2(b). 

12 Coble, 330 S.W.3d at 280.

13 Id.

14 See Chaddock v. State, 203 S.W.3d 916, 928–29 (Tex. App.—Dallas 2006, no pet.) (discussing harm in the context of erroneously overruled 

rule 403 objection).

15 The jury charge did contain a general instruction concerning extraneous offense evidence.
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The complainant testified extensively about appellant’s sexual abuse of her, and this 

testimony was corroborated by other witnesses. Caitlin Cleveanger, former forensic interviewer 

with the Children’s Advocacy Center testified about her interview of the complainant. The 

complainant was thirteen years old at the time of the interview, and described the first instance of 

sexual abuse by her father when she was in the third grade. The complainant told Cleveanger that 

her father had shown her a “dirty” movie and asked her if she wanted to do the things depicted in 

the movie. The child said “no,” and went downstairs to watch television. But her father came 

downstairs and removed her pants and performed oral sex on her. The complainant explained 

that she just “froze” and it scared her. The complainant also described another instance that 

occurred when she was in the fourth grade. She reported that her father called her upstairs to the 

master bedroom. When she arrived, he asked her to take off her clothes and get on the floor. Her 

father then removed his clothes and put his penis inside her vagina. The complainant was 

screaming and crying and telling him to stop. At one point, appellant stopped, and the 

complainant pushed him and ran into the bathroom. The complainant disclosed another instance 

with appellant involving oral sex and reported that there were several times she observed her 

father masturbating. The complainant was able to provide sensory details about the instances of 

abuse she described.

The complainant told Cleveanger the abuse stopped when her mother stopped working at 

night. The complainant said that her father would try to keep her separated from her mother, and 

told her father/daughter relationships “are like this.”

Hernandez also testified about her daughter’s outcry to her. She explained that she did 

not go to the police because she was afraid that she would be deported or that CPS would take 

her children away. Hernandez also testified that on more than one occasion when the 

complainant was between the ages ten and twelve, appellant saw the complainant eating a 
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banana and commented that she had a “sucking mouth.” If the complainant or her sister was 

taking too long on her bath, appellant would tell Hernandez to go check to make sure the girl 

“was not playing with her thing.” When the complainant wore shorts, appellant would check to 

see if the shorts were an appropriate length by having the complainant bend over and touch her 

toes in front of him. After the complainant’s outcry, Hernandez became watchful of her 

daughters. Appellant asked Hernandez whether she was afraid that he was going to rape her girls.

J. Smeltzer, an officer with the Balch Springs police department, testified about her 

investigation of the offense. Smeltzer was present when Cleveanger conducted the forensic 

interview with the complainant. During the interview, the complainant described where her 

father kept the pornography he made her watch and identified one of the movies entitled “Asian 

Buffet.” Smelter went to the complainant’s home and spoke with Hernandez. She photographed 

the inside of the home and retrieved the pornographic movies, including the movie “Asian 

Buffet” from the location the complainant had described.

During the course of the investigation, Smeltzer also spoke with Ruth Lopez, a friend of 

the complainant’s. Lopez told her that appellant was a “bad man.” Lopez had been friends with 

the complainant since the girls were eight or nine years old, and that she could tell there was 

something wrong with the complainant. When the complainant finally opened up to her, she told 

Lopez that she had lost her virginity to her father and “that had been going on for a long time.”

Smeltzer also testified that based on her observation of the complainant’s forensic 

interview, the complainant “had details that a child her age should not know,” and Smeltzer 

believed she was telling the truth.

Patricia Mulligan, the complainant’s school counselor testified that she had been 

counseling the complainant for a while, and she ultimately confided that her father had sexually 

abused her. Mulligan contacted CPS. When the complainant told Mulligan about the abuse, she 
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also told Mulligan that on the preceding Friday, her father caught her holding hands with a boy, 

was very angry, and had slapped her. On cross-examination, defense counsel inquired whether 

the counselor thought it strange that complainant made an outcry of abuse the following 

Monday. The counselor replied, “No. If something pushed her to the point where she was ready 

to come out with it then, no.”

The jury also heard from Kenita Taylor-Holsworth, a counselor at the Children’s 

Advocacy Center. The complainant met with Taylor-Holsworth because there were reports that 

complainant had been sexually abused and the complainant was experiencing symptoms of 

depression and “cutting.” Taylor-Holsworth explained that “cutting” means using objects like 

razor blades, knives, needles, or fingernails to cut the skin to create injuries on the body. TaylorHolsworth believed that complainant’s problems included depression and post-traumatic stress 

disorder. Taylor-Holsworth met with the complainant once a week for about a year and a half. 

During her sessions with the complainant, Taylor-Holsworth learned that the perpetrator of the 

abuse was complainant’s father.

At some point during the course of therapy, Taylor-Holsworth met with the complainant 

twice a week. During this time, the complainant was presenting with extreme flashbacks, and 

had been passing out at school. She was throwing temper tantrums at home where she would lose 

control and become incredibly angry. These symptoms became so severe that the complainant 

was missing school because she could not complete the day. Initially, because the complainant 

was so depressed and suicidal, the counseling was performed on an individual basis. As the 

complainant’s condition improved, she was referred to a group session for girls who had 

experienced similar issues.
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Given the strength of the evidence against appellant, we conclude that the admission of 

Hernandez’s testimony about her sex life with appellant, even if erroneous, was harmless. 

Appellant’s first issue is overruled.

Having resolved all of appellant’s issues against him, we affirm the trial court’s 

judgment.

Do Not Publish

TEX. R. APP. P. 47

131212F.U05

/Kerry P. FitzGerald/

KERRY P. FITZGERALD

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

SERGIO URESTI, Appellant

No. 05-13-01212-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court 

No. 4, Dallas County, Texas

Trial Court Cause No. F-1112542-K.

Opinion delivered by Justice FitzGerald. 

Justices Lang and Brown participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 19th day of December, 2014.