COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-18-00146-CR

JAMES ROBERTS, JR. APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

TRIAL COURT NO. 1390094D

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MEMORANDUM OPINION1

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Appellant James Roberts, Jr. appeals his convictions for continuous sexual 

abuse of a small child or children and sexual assault of a child. In three issues, 

Appellant argues that (1) the trial court erred by allowing a forensic interviewer to 

testify that she did not observe “any red flags for coaching or lying” on the part of 

the complainants, (2) the trial court erred by allowing the State to photograph 

 1See Tex. R. App. P. 47.4.
2

Appellant’s groin without first obtaining a search warrant, and (3) penal code 

section 21.02(d) is an unconstitutional violation of Appellant’s right to a 

unanimous jury verdict under article V, section 13 of the Texas constitution. We 

affirm.

Factual and Procedural Background

A grand jury indicted Appellant in a two-count indictment for continuous 

abuse of a young child or children and sexual assault of a child. See Tex. Penal 

Code Ann. §§ 21.02, 22.011 (West Supp. 2017). The first count alleged multiple 

instances of aggravated sexual assault of a child and/or indecency with a child 

against two victims, VM2 and SR—both under fourteen years of age—spanning 

the years between September 1, 2009, through February 22, 2014. The second 

count charged Appellant with the sexual assault of VM, a child younger than 

seventeen years of age, on or about February 22, 2014.

VM was the State’s primary witness. She referred to Appellant as her 

stepdad (though VM and SR’s mother, SM, testified that she and Appellant had 

never married). VM testified that when she was seven years old, Appellant 

touched her vagina with his hand through her clothing. Appellant’s conduct 

escalated over time. He began rubbing his penis against her vagina and 

ejaculating on her. VM said Appellant sexually abused her over 100 times. 

When VM was in sixth grade and about 13 years old, Appellant began 

 22We use initials to protect the victims’ anonymity. See McClendon v. 

State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
3

penetrating her vagina with his penis. In February 2014, VM reported Appellant’s 

abuse to SM, and SM reported the abuse to police.

VM testified that Appellant was circumcised and had a large mole on his 

upper thigh near his penis, both of which characteristics she observed when 

Appellant was abusing her. Over Appellant’s objection, the trial court admitted 

into evidence two photographs of Appellant’s mole. SM confirmed that Appellant 

is circumcised and has a mole on the inside of his leg by his scrotum.

SM testified that days before VM’s outcry, she was asleep in bed with 

Appellant and their three-year-old daughter, SR. SM awoke to find Appellant 

rubbing SR’s genitals with his hand.

A jury convicted Appellant on both counts. The jury assessed punishment 

at confinement for 50 years and 20 years for the two counts, respectively. The 

trial court rendered judgment accordingly, and this appeal followed.

Analysis

1. The trial court erred by admitting expert testimony that VM did not 

show signs of lying, but the error was harmless.

In his first point, Appellant argues that the trial court erred by allowing the 

State’s forensic interviewer, Lindsey Dula, to testify that VM did not show signs of 

lying.

a. Standard of review

We review a trial court’s rulings on evidentiary objections for an abuse of 

discretion. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). A trial 
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court does not abuse its discretion unless its ruling is arbitrary and unreasonable. 

Foster v. State, 180 S.W.3d 248, 250 (Tex. App.—Fort Worth 2005, pet. ref’d)

(mem. op.). The mere fact that a trial court may decide a matter within its 

discretionary authority in a different manner than an appellate court would in a 

similar circumstance does not demonstrate that an abuse of discretion has 

occurred. Id. If the trial court’s “evidentiary ruling is correct on any theory of law 

applicable to that ruling, it will not be disturbed.” Devoe v. State, 354 S.W.3d 

457, 469 (Tex. Crim. App. 2011).

b. Dula’s testimony and Appellant’s objection

Dula is a forensic interviewer for the Alliance for Children. She interviewed 

VM a few days after VM’s outcry to SM. Dula testified that “suggestibility” is “the 

idea of either suggesting answers or bringing up a topic that wasn’t raised 

before” and that she did not “have any suggestibility concerns with” VM. She 

further testified that “coaching” is “the idea that a child may be told to say 

something or told not to say something.” She said that during her 60-minute 

interview with VM, she did not detect any “red flags for coaching or lying.”

During a prior voir dire examination outside the jury’s presence, Appellant 

posed the following objection (among others) to Dula’s testimony:

[Appellant’s Counsel]: . . . I would object to Ms. Dula 

rendering an opinion on whether statements are consistent with -- I 

believe when she said . . . her statements would be consistent with 

something not being suggestive as in so many words saying that 

those statements are truthful. We’d object to the -- any opinion on 

the absence of suggestiveness attached to whatever statements 

were made in the interview.
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THE COURT: Well, I’ll overrule that objection. She may 

testify within the realm of her expertise as to what are suggestive 

questions and whether suggestive questions were used in this 

instance or not. She can testify as an expert on the area of 

suggestibility with children in a forensic interview and whether that 

applied in this case or not.

[Appellant’s Counsel]: And I would object to her testifying 

whether that happened in this case or not.

THE COURT: I’ll overrule that. She may testify as to that.

[Appellant’s Counsel]: Your Honor, I have one additional 

related objection, and that is that she testified that she saw no red 

flags for lying. And that is a roundabout way of saying that she’s 

telling the truth. We’d object to an opinion on that ground, to her 

issuing that opinion.

. . . .

THE COURT: And I overrule that objection.

c. Appellant failed to preserve error related to the “coaching” 

comment.

The State argues that Appellant failed to preserve any error associated 

with Dula’s “coaching” comment. But a careful reading of Appellant’s brief shows 

that while Appellant quotes Dula’s “coaching” comment, Appellant’s point relies 

on her “lying” comment. Nevertheless, to the extent Appellant’s brief could be 

read to assign error to the “coaching” comment, we agree with the State that 

Appellant did not preserve error for our review.

To preserve a complaint for our review, a party must have presented to the 

trial court a timely request, objection, or motion that states the specific grounds 

for the desired ruling if they are not apparent from the context of the request, 
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objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 

670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). Further, 

the trial court must have ruled on the request, objection, or motion, either 

expressly or implicitly, or the complaining party must have objected to the trial 

court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 

259, 262–63 (Tex. Crim. App. 2013). A reviewing court should not address the 

merits of an issue that has not been preserved for appeal. Ford v. State, 305 

S.W.3d 530, 532 (Tex. Crim. App. 2009).

Appellant objected to Dula’s testimony about whether VM exhibited signs 

of suggestibility or lying. Appellant did not object to Dula’s testimony about 

coaching. Dula gave different definitions for “suggestibility” and “coaching” 

immediately before Appellant made his objection. Given that context, Appellant’s 

objection to “suggestibility” did not suffice to encompass an objection to 

“coaching.”

Because Appellant did not object to Dula’s “coaching” comment, we hold 

that Appellant did not preserve his complaint (if any) about the “coaching” 

comment for our review. See Tex. R. App. P. 33.1(a)(1).

d. The trial court erred by admitting the “lying” comment, but the 

error was harmless.

The State may not elicit expert testimony that a particular child is telling the 

truth or that child complainants as a class are worthy of belief. Yount v. State, 

872 S.W.2d 706, 711–12 (Tex. Crim. App. 1993). Nor may an expert offer an 
7

opinion on the truthfulness of a child complainant’s allegations. Schutz v. State, 

957 S.W.2d 52, 59 (Tex. Crim. App. 1997).

The State concedes that the trial court erred by allowing Dula to testify that 

she saw no “red flags for . . . lying.” We agree. We therefore hold that the trial 

court abused its discretion by overruling Appellant’s objection to Dula’s “lying” 

comment and allowing Dula to testify that she saw no “red flags for. . . lying.”

Having found error, we must conduct a harm analysis to determine 

whether the error calls for reversal of the judgment. Tex. R. App. P. 44.2. The 

erroneous admission of expert testimony is generally non-constitutional error to 

which rule 44.2(b) applies. See Schutz v. State, 63 S.W.3d 442, 444–45 (Tex. 

Crim. App. 2001) (analyzing harm under rule 44.2(b) when trial court erroneously 

allowed expert to comment on complainant’s credibility); Yount, 872 S.W.2d at 

712 (holding expert testimony to complainant’s truthfulness is not permitted by 

rule 702). Under rule 44.2(b), we must disregard the error if it did not affect 

appellant’s substantial rights. Tex. R. App. P. 44.2(b). A substantial right is 

affected when the error had a substantial and injurious effect or influence in 

determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. 

App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 

1253 (1946)). Conversely, an error does not affect a substantial right if we have 

“fair assurance that the error did not influence the jury[] or had but a slight effect.” 

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State, 

967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
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In analyzing whether the erroneous admission of expert testimony was 

harmful, we may consider, among other things: (1) the strength of the evidence 

of the appellant’s guilt, (2) whether the jury heard the same or substantially 

similar admissible evidence through another source, (3) the strength or 

weakness of an expert’s conclusions, including whether the expert’s opinion was 

effectively refuted, and (4) whether the State directed the jury’s attention to the 

expert’s testimony during arguments. Sandoval v. State, 409 S.W.3d 259, 293–

94 (Tex. App.—Austin 2013, no pet.) (citing Coble v. State, 330 S.W.3d 253, 

286–88 (Tex. Crim. App. 2010), cert. denied, 564 U.S. 1020 (2011)). “Even in 

cases in which credibility is paramount, Texas courts have found harmless error 

when the inadmissible expert testimony was only a small portion of a large 

amount of evidence presented that the jury could have considered in assessing 

the victim’s credibility.” Barshaw v. State, 342 S.W.3d 91, 96 (Tex. Crim. App. 

2011).

Applying these factors to the evidence in this case, we conclude that the 

admission of Dula’s “lying” comment was harmless. First, the evidence of 

Appellant’s guilt was strong. VM testified at length and in detail about Appellant’s 

abuse. She testified about the appearance of Appellant’s penis and mole, 

testimony that was corroborated by SM. A forensic biologist testified that a rapekit vaginal smear from VM tested positive for semen.3 SM found Appellant 

 3The biologist testified that a DNA test was inconclusive.
9

sleeping in VM’s bed on several occasions. And SM actually saw Appellant 

sexually abusing SR. The jury also heard that Appellant attempted to cut his own 

throat with a boxcutter when VM made her outcry to SM.

Second, the jury heard testimony reflecting on VM’s credibility and 

demeanor from other witnesses. A police officer who interviewed VM after her 

outcry to SM testified that when VM described Appellant’s abuse to him, she was 

“very emotional, mixed emotions at the time. She was anxious, crying. At the 

time, seems like she had a little anxiety.” A sexual-assault nurse examiner who 

interviewed VM testified that VM “readily answered my questions. She was --

had eye contact and she was tearful.” The jury also had the opportunity to 

assess VM’s credibility and demeanor for themselves when VM testified. See

McDonald v. State, No. 04-02-00748-CR, 2004 WL 383298, at *2, *6 (Tex. 

App.—San Antonio Mar. 3, 2004, pet. ref’d) (mem. op., not designated for 

publication) (finding no harm after detective testified he saw nothing to indicate 

complainant fabricated sexual abuse when, among other things, complainant 

testified at trial).

The third factor we look to is the strength or weakness of an expert’s 

conclusions. Appellant emphasizes Dula’s credentials and notes that he had no 

“similarly impressive expert to refute [Dula’s] opinions.” We agree that an 

expert’s credentials and experience can be relevant to the strength of the 

expert’s conclusions. But Dula’s actual conclusion on VM’s credibility was 

expressed in a two-word answer—“No, sir”—to counsel’s question, “[W]ere there 
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any red flags for coaching or lying?” This conclusion was not particularly strong 

and does not support a finding of harm.

Only the fourth factor—whether the State directed the jury’s attention to the 

expert’s testimony during arguments—weighs in Appellant’s favor. The State 

drew attention to the “red flags for lying” comment in both opening and closing 

statements. In the State’s opening statement, the prosecutor told the jury that 

Dula would testify that “she saw no red flags,” and in closing argument, the State 

mentioned Dula’s credentials and her no “red flags for . . . lying” testimony. But 

because the State did not dwell on Dula’s testimony and it comprised only a 

small part of the State’s overall argument, this factor weighs only slightly in 

Appellant’s favor.

Considering all of the relevant factors, we conclude that, in the context of 

the entire case against Appellant, the trial court’s error in allowing Dula to testify 

that she saw no “red flags for . . . lying” did not have a substantial or injurious 

effect on the jury’s verdict and did not affect Appellant’s substantial rights. See 

King, 953 S.W.2d at 271. Thus, we disregard the error. See Tex. R. App. P. 

44.2(b).

We overrule Appellant’s first issue.

2. Appellant failed to preserve alleged error concerning the trial court’s 

order allowing the State to photograph Appellant’s groin.

In his second issue, Appellant argues that the trial court’s order allowing 

the State to photograph Appellant’s groin without requiring the State to obtain a 
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search warrant violated Appellant’s rights under the Fourth Amendment of the 

United States Constitution and article I, section 9 of the Texas constitution.

Prior to trial, the State filed a motion to photograph a “unique feature” of 

Appellant’s body and served a copy of the motion on Appellant’s counsel. The 

trial court granted the motion. An investigator with the district attorney’s office 

then took the photographs in the trial court’s holdover cell. Neither the motion 

nor the order identifies the “unique feature” in question. At trial, the State offered, 

and the trial court admitted into evidence over Appellant’s objections, two 

photographs of the mole on Appellant’s groin.

The State argues that by waiting until trial to object to the trial court’s order 

and the resulting photographs, Appellant forfeited his complaint about the order. 

We agree.

An objection must be made as soon as the basis for the objection 

becomes apparent. Tex. R. Evid. 103(a)(1); London v. State, 490 S.W.3d 503, 

507 (Tex. Crim. App. 2016); Reyes v. State, 361 S.W.3d 222, 228–29 (Tex. 

App.—Fort Worth 2012, pet. ref’d); Pena v. State, 353 S.W.3d 797, 807 (Tex. 

Crim. App. 2011); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) 

(“We have consistently held that the failure to object in a timely and specific 

manner during trial forfeits complaints about the admissibility of evidence. This is 

true even though the error may concern a constitutional right of the defendant.” 

(citations omitted)). There are three main purposes behind requiring a timely, 

specific objection:
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The requirement that complaints be raised in the trial court 

(1) ensures that the trial court will have an opportunity to prevent or 

correct errors, thereby eliminating the need for a costly and timeconsuming appeal and retrial; (2) guarantees that opposing counsel 

will have a fair opportunity to respond to complaints; and 

(3) promotes the orderly and effective presentation of the case to the 

trier of fact.

Lackey v. State, 364 S.W.3d 837, 843–44 (Tex. Crim. App. 2012) (quoting 

Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006)).

Here, the basis for the objections Appellant raised at trial became apparent 

as soon as the State served on Appellant’s counsel its motion to photograph 

Appellant’s “unique feature,” and Appellant had the opportunity to object before 

the trial court granted the order. A timely objection to the State’s motion to 

photograph Appellant (1) would have given the opportunity to prevent or correct 

any constitutional error associated with its order and (2) would have given the 

State the opportunity to seek a search warrant if the trial court sustained 

Appellant’s constitutional objections and denied the motion. See id. Because 

Appellant did not make his objections to the State’s motion and the trial court’s 

order as soon as the basis for those objections became apparent, we hold that 

Appellant forfeited his complaint, and we overrule his second issue.

3. Penal code section 21.02(d) did not violate Appellant’s right to jury 

unanimity.

In his final issue, Appellant argues that penal code section 21.02(d) 

violates his constitutional right to jury unanimity. See Tex. Penal Code Ann. 

§ 21.02(d) (West 2011) (providing that jury in continuous-sexual-abuse case is 
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“not required to agree unanimously on which specific acts of sexual abuse were 

committed by the defendant or the exact date when those acts were 

committed.”). This court rejected the identical argument in Pollock v. State, 405 

S.W.3d 396, 404–05 (Tex. App.—Fort Worth 2013, no pet.). For the reasons 

stated in Pollock, we overrule Appellant’s third issue. See id. at 405.

Conclusion

Having overruled all of Appellant’s issues, we affirm the trial court’s 

judgment.

/s/ Bonnie Sudderth

BONNIE SUDDERTH

CHIEF JUSTICE

PANEL: SUDDERTH, C.J.; MEIER and KERR, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 21, 2018