NUMBER 13-09-00623-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JUAN REYES RIVERA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 94th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Perkes

Memorandum Opinion by Chief Justice Valdez

Appellant, Juan Reyes Rivera, was charged by indictment with the offense of 

continuous sexual abuse of a child, a first-degree felony. See TEX. PENAL CODE ANN. § 

21.02(b), (h) (Vernon Supp. 2010). A jury convicted Rivera of the charged offense and 

sentenced him to life imprisonment in the Institutional Division of the Texas Department 

of Criminal Justice. By one issue, Rivera asserts that he was provided ineffective 
2

assistance of counsel because his trial counsel allegedly failed to object to the 

admission of hearsay testimony from several witnesses, the admission of testimony 

concerning the child victim‘s truthfulness, and the prosecutor‘s closing argument. We 

affirm.

I. BACKGROUND

Rivera was charged with continuously sexually abusing J.E., an eight-year-old 

child.

1

 See id. § 21.02(b).2 The abuse was discovered when one of J.E.‘s sisters read 

a diary that J.E. kept. In her diary, J.E. noted that ―My grandpa [Rivera] tries to rape 

me[,] and I don‘t feel comfortable.‖ When J.E.‘s sister discovered this note, she 

immediately took it to J.E.‘s mother, C.L. C.L. was surprised by the allegations, but she 

asked J.E. about the incidents. J.E. told C.L. that Rivera had touched her more than 

one hundred times and that he had repeatedly exposed his penis to her. J.E. initially 

told C.L. that Rivera had only touched her with his hands; however, she later noted that 

Rivera also touched her with his penis and that he had penetrated her vagina with his 

finger. After hearing this story, C.L. took J.E. to Driscoll Children‘s Hospital (―Driscoll‖)

in Corpus Christi, Texas, so that she could undergo an examination. 

 

1

To protect the identities of the children involved, we refer to them and their mother by their initials. 

See TEX. R. APP. P. 9.8.

2

Section 21.02(b) provides that a person commits the offense of continuous sexual abuse of a young 

child if:

(1) during a period that is 30 or more days in duration, the person commits two or more acts 

of sexual abuse, regardless of whether the acts of sexual abuse are committed against 

one or more victims; and

(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of 

age or older and the victim is a child younger than 14 years of age.

TEX. PENAL CODE ANN. § 21.02(b) (Vernon Supp. 2010).
3

Nurse Sandra Pardo, a sexual abuse nurse examiner at Driscoll, conducted the 

examination of J.E. Nurse Pardo did not find any evidence of trauma to J.E.‘s sexual 

organs; however, she noted that it is often the case that trauma is not revealed in the 

examination because the body heals very quickly. Nurse Pardo also took a history from 

J.E., whereby J.E. stated that:

Grandpa, Juan Rivera, tried to do some nasty stuff with me. He touched it 

(patient [J.E.] indicates female sexual organ by pointing.) His hands were 

over my pants. I told him to stop. He stopped. He always does it when 

Grandma [Blanca Rivera] is gone or asleep. My brothers and sisters go 

out to play and he grabs me. 

Nurse Pardo did not recall J.E. telling her that Rivera penetrated her sexual organ or her 

anus with his penis or that he ejaculated. 

Tanya Flores, an investigator with the Corpus Christi Police Department, testified 

that J.E. ―disclose[d] issues pertaining to sexual abuse.‖ Investigator Flores recalled 

viewing J.E.‘s diary, where J.E. described that Rivera had raped her; Investigator Flores 

noted that J.E. first told her brother, S.E., about the abuse before she told C.L. J.E. told 

Investigator Flores that the abuse took place for two years, from when J.E. was six 

years old until she was eight years old. Investigator Flores also discovered that the 

alleged sexual abuse transpired at Rivera‘s house in Corpus Christi and at a resort in 

New Braunfels.

Ricardo Jimenez, the program director and lead forensic interviewer at the 

Children‘s Advocacy Center in Corpus Christi, testified that he interviewed J.E. about

the alleged incidents of sexual abuse for eighteen minutes, a length that Rivera 

suggested on cross-examination was insufficient to obtain the truth.3 Jimenez noted 

 

3

A DVD of Jimenez‘s interview of J.E. was admitted into evidence. Initially, on appeal, the record 

did not contain a copy of the DVD despite a request made by Rivera‘s trial counsel to include the DVD in 
4

that J.E. seemed to add details each time she was asked about the abuse. He 

characterized this as ―incremental disclosure,‖ wherein ―sometimes kids think they‘re in 

trouble, so they‘ll kind of give a little bit of information. If that‘s okay, then more comes 

out. . . . [I]f we have an incident of abuse that‘s occurred over a long period of time, 

again, more comes out with time.‖ J.E. told Jimenez that Rivera would tell her that she 

would owe him ―big‖ or ―big time‖ each time she asked for something and Rivera would 

buy it. Towards the end of the interview, Jimenez left the room to discuss the case with 

others. He later returned to clear up discrepancies in J.E.‘s stories, especially between 

her statement to him and the statements made at Driscoll.4 J.E. told Jimenez that 

Rivera had penetrated her vagina ―30 plus times‖ and that he had touched her vagina 

more than 100 times.

S.E. testified that J.E. is one of his younger sisters and that she was ―a good kid‖ 

who did not get in a lot of trouble. S.E. recalled that Rivera treated J.E. differently than 

the other grandchildren. In particular, S.E. stated that ―he [Rivera] would give her all 

this money and like we wouldn‘t get no [sic] money and like we would have to use our 

own money like if we wanted to buy snacks and then he gave her money so she didn‘t 

use her money.‖ S.E. thought that Rivera treated J.E. as his favorite. S.E. remembered 

that J.E. told him that Rivera was touching her, but he ―didn‘t really think nothing [sic] of 

it.‖ S.E. also remembered one incident where he and his sister, M.E., were locked out 

of Rivera‘s house while J.E. and Rivera were the only ones inside. On crossexamination, Rivera‘s trial counsel questioned S.E. regarding the locked-door incident. 

 

the appellate record. We requested that the trial court provide us with the DVD, which it did. Accordingly, 

we have reviewed the DVD in analyzing the record in this appeal. 

4 One such discrepancy pertained to J.E.‘s disclosure to Jimenez that Rivera had had sex with 

her in the shower, a story that she did not share with Nurse Pardo.
5

S.E. recalled hearing the door lock and trying to open the door, but it would not open. In 

addition, S.E. denied ever being touched inappropriately by Rivera.

Rosemary Goltz, a licensed professional counseling intern, stated that she spoke 

with J.E. about the incidents and that J.E. appeared to be tired and regressing or, in 

other words, acting like a baby. Goltz attributed J.E.‘s odd behavior to post-traumatic 

stress disorder. Goltz remembered that J.E. had difficulty concentrating, and it 

appeared that J.E. wished to block out the incidents and no longer talk about them. J.E. 

disclosed the alleged sexual abuse to Goltz, and at the conclusion of the interview, 

Goltz assisted J.E. in filling out a questionnaire. In the questionnaire, J.E. indicated that 

Rivera had: (1) been naked around her; (2) masturbated in front of her; (3) not engaged 

in intercourse with her; (4) had oral or anal sex with her; (5) did not force her into 

prostitution; and (6) forced her to watch pornographic movies.

On cross-examination of each of the aforementioned witnesses, Rivera‘s trial 

counsel inquired about J.E.‘s stories about the abuse, insinuating that J.E. may have 

not been truthful given the fact that her story changed repeatedly. Rivera‘s trial counsel 

repeatedly asked the witnesses about the apparent inconsistencies in J.E.‘s retelling of 

the abuse, thus placing J.E.‘s credibility at issue. It was only on re-direct examination 

that the State asked questions of the witnesses regarding J.E.‘s truthfulness in order to 

rebut the impression that Rivera‘s trial counsel left with the jury—that J.E. was not 

truthful. In addition, the State called Goltz and Paula Rosenstein, a therapist at Family 

Counseling Service, to testify that J.E. was suffering from post-traumatic stress disorder 
6

and that was likely the reason that J.E.‘s stories about the incidents changed or why 

J.E. seemed to add more details with each retelling of the stories.5

J.E. testified that, on March 22, 2008, she wrote in her diary that Rivera had 

raped her and that she did not feel comfortable about it. J.E. recalled that Rivera 

touched her vagina with his hands, both over her clothes and underneath her clothes. 

J.E. stated that the sexual abuse typically occurred in the guest room of Rivera‘s house, 

which she considered to be her room. She recalled one incident where Rivera allegedly 

got on top of her while she was wearing his white t-shirt. In this instance, J.E. was not 

wearing any underwear and Rivera purportedly rubbed J.E.‘s vagina with his penis. 

She remembered that something white would often come out of Rivera‘s penis. J.E. 

denied that Rivera touched her anywhere else but her vagina. J.E. also testified that 

Rivera would make her watch pornographic movies and that he would masturbate in 

front of her while watching the movies. Further, J.E. noted that Rivera gave her candy, 

gifts, and money frequently despite allegedly not giving the other grandchildren 

anything. The State characterized these actions as ―grooming‖ J.E. or, in other words, 

bribing her to keep quiet about the sexual abuse. Later in her testimony, J.E. admitted 

that she had not told Nurse Pardo or Jimenez everything that had transpired, and she 

denied ever telling Jimenez that Rivera had ever put his penis inside her vagina. 

 

5 Rosenstein described J.E.‘s purported post-traumatic stress disorder as follows:

It‘s as if she‘s kind of pocketed off different things that happened to her and as she—as 

she can or as parts of her kind of open up and—and she relaxes these things come to 

her mind. It‘s kind of like she segmented things off so that she can cope and she can 

handle it. If she remembered everything at once[,] she would probably become 

psychotic.
7

Rivera and his wife, Blanca Rivera, testified on Rivera‘s behalf. Blanca testified 

that she did not believe that Rivera sexually abused J.E. According to Blanca, J.E. told 

her that ―nobody touches me.‖ Blanca explained that:

She‘s—she‘s a good little girl, but she lies. She likes to make up stories, 

likes to lie a lot, to get her way. If she don‘t [sic] get her way, she gets into 

lying, to get the other kids in trouble. That‘s how she is. She‘s a 

sweetheart, and I love her very much, but she lies to get her way all the 

time. She lies a lot. Constantly lying. 

Blanca also testified that virtually everyone else who alleged that Rivera engaged in 

wrongdoing lies, especially C.L. Blanca denied seeing Rivera doing ―stuff for just [J.E.] 

without also doing stuff for the other kids.‖ She later recognized a letter sent by Rivera 

to C.L., which included $12 for just J.E., but Blanca explained that Rivera really meant 

for the money to go to J.E. and one of her brothers. Blanca testified that there are not 

any pornographic movies or magazines at the Rivera house. Blanca acknowledged that 

she had not spoken to J.E. since J.E. made her outcry statements, more than two years 

later. Blanca further testified that Rivera did not pay special attention to J.E.

Rivera testified on his own behalf and denied the allegations made in the 

indictment and the allegations made by J.E. Rivera denied treating J.E. any differently 

than his other grandchildren. Rivera explained that the $12 he sent J.E. was to be used 

to buy lunch at school. Rivera testified that he and C.L. had an agreement for Rivera to 

claim J.E. as a dependent on his income tax return for 2006 and 2007. He also testified 

that Blanca was in charge of the money, and he was only allowed to buy the 

grandchildren snacks at the store. Rivera agreed with Blanca that his grandchildren 

were ―a bunch of little liars.‖ Rivera believed that the allegations were made against him 
8

because he had previously stated that he was no longer going to baby-sit the children 

and he was no longer going to assist C.L. financially. 

II. STANDARD OF REVIEW

To establish ineffective assistance of counsel, Rivera must show: (1) his

attorney‘s representation fell below an objective standard of reasonableness; and (2) 

there is a reasonable probability that, but for his attorney‘s errors, the result of the 

proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 

684 (1984); Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999) (holding that 

appellant must show a reasonable probability that, but for counsel‘s errors, the factfinder would have had a reasonable doubt as to appellant‘s guilt); Jaynes v. State, 216 

S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.). Whether this test has been 

met is to be judged on appeal by the totality of representation, not by any isolated acts

or omissions. Jaynes, 216 S.W.3d at 851. Rivera has the burden of proving ineffective 

assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 

S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403 

(Tex. Crim. App. 1984)).

Our review of counsel‘s representation is highly deferential, and we will find 

ineffective assistance only if Rivera overcomes the strong presumption that his

counsel‘s conduct fell within the range of reasonable professional assistance. See 

Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. The right to ―reasonably 

effective assistance of counsel‖ does not guarantee errorless counsel or counsel whose 

competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex. 

Crim. App. 1983). Moreover, the acts or omissions that form the basis of Rivera‘s

claims of ineffective assistance must be supported by the record. Thompson, 9 S.W.3d 
9

at 814; Jaynes, 216 S.W.3d at 851. A silent record which provides no explanation for 

counsel‘s actions usually will not overcome the strong presumption of reasonable 

assistance. Thompson, 9 S.W.3d at 813-14. To warrant reversal without affording 

counsel an opportunity to explain his actions, ―the challenged conduct must be  ̳so 

outrageous that no competent attorney would have engaged in it.‘‖ Roberts v. State, 

220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (quoting Goodspeed v. State, 187 S.W.3d 

390, 392 (Tex. Crim. App. 2005)).

III. THE RECORD

At the outset of our analysis of Rivera‘s appellate complaints, we note that Rivera 

did not assert that his trial counsel provided ineffective assistance of counsel in his 

motion for new trial. Moreover, the record does not reflect that a hearing was 

conducted on Rivera‘s motion for new trial; instead, the motion was overruled by 

operation of law. See TEX. R. APP. P. 21.8(a), (c); see also State v. Gutierrez, 143 

S.W.3d 829, 831 (Tex. App.–Corpus Christi 2004, no pet.). Thus, Rivera‘s trial counsel 

has not been afforded an opportunity to explain his trial strategy. Given that a silent 

record ordinarily will not overcome the strong presumption of reasonable assistance, we 

will review Rivera‘s appellate complaints to determine whether trial counsel‘s alleged 

inactions were ―so outrageous that no competent attorney would have engaged in 

[them].‖ See Roberts, 220 S.W.3d at 533; Goodspeed, 187 S.W.3d at 392; Thompson, 

9 S.W.3d at 813-14.

IV. HEARSAY

In his first sub-issue, Rivera contends that his trial counsel was ineffective for 

failing to object to numerous hearsay statements made by several outcry witnesses. 
10

Rivera argues that the admission of these statements violated article 38.072 of the code

of criminal procedure, see TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon Supp. 

2010),6and that, but for his trial counsel‘s failure to object to these statements, the 

 

6

Article 38.072 of the code of criminal procedure provides as follows, in pertinent part:

Sec. 1. This article applies to a proceeding in the prosecution of an offense under any of 

the following provisions of the Penal Code, if committed against a child 14 years of age or 

younger or a person with a disability:

(1) Chapter 21 (Sexual Offenses)

. . . .

Sec. 2.

(a) This article applies only to statements that:

(1) describe:

(A) the alleged offense; 

. . . .

(2) were made by the child or person with a disability against whom the charged 

offense or extraneous crime, wrong, or act was allegedly committed; and

(3) were made to the first person, 18 years of age or older, other than the 

defendant to whom the child or person with a disability made a statement 

about the offense or extraneous crime, wrong, or act.

(b) A statement that meets the requirements of Subsection (a) is not inadmissible 

because of the hearsay rule if:

(1) On or before the 14th day before the date the proceeding begins, the party 

intending to offer the statement:

(A) notifies the adverse party of its intention to do so;

(B) provides the adverse party with the name of the witness through whom it 

intends to offer the statement; and

(C) provides the adverse party with a written summary of the statement;

(2) the trial court finds, in a hearing conducted outside the presence of the jury, that 

the statement is reliable based on the time, content, and circumstances of the 

statement; and

(3) the child or person with a disability testifies or is available to testify at the 

proceeding in court or in any other manner provided by law. . . .
11

result of the trial would have been different. The State counters by arguing that ―the 

outcries in question are inconsistent, and that Rivera‘s attorney used the 

inconsistencies to his advantage.‖ The State also argues that much of the outcry 

testimony about which Rivera complains would be admissible under various exceptions 

to the hearsay rule.

On appeal, Rivera directs us to the testimony of Lopez, Jimenez, Nurse Pardo, 

Goltz, and S.E. He argues that their testimony constituted inadmissible hearsay 

because their testimony ―merely repeat[ed] the same event as related to them by the 

victim‖ and, thus, violated article 38.072. See id.; see also Broderick v. State, 35 

S.W.3d 67, 73 (Tex. App.–Texarkana 2000, pet. ref‘d) (noting that the proper outcry 

witness to a single event is the first adult person other than the defendant to whom the

victim made a statement describing the incident).

After reviewing the record, we hold that Rivera‘s reliance on Broderick is 

misplaced, and we disagree that the witnesses ―merely repeat[ed] the same event as 

related to them by the victim.‖ See Broderick, 35 S.W.3d at 73. First, with respect to 

Broderick, we note that the Texarkana Court of Appeals stated the following:

Because of the way in which the statute [article 38.072] is written, an 

outcry witness is not person-specific, but event-specific. Before more than 

one outcry witness may testify, however, the outcry must be about a

different event, and not simply a repetition of the same event as related by 

the victim to different individuals. From a careful reading of the outcry 

witness statute, we conclude that there may be two proper outcry 

witnesses if they each testify about different events, but there may be only 

one outcry witness to the victim‘s statement about a single event.

Id. Therefore, under article 38.072, the State may call upon multiple outcry witnesses to 

testify so long as the witnesses testify about different events. In the instant case, J.E. 

 

TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon Supp. 2010).
12

alleged that Rivera sexually assaulted her more than 100 times during a two-year 

period—from when she was six years old until she was eight years old. The State‘s 

outcry witnesses testified to J.E.‘s recounting of several events, including times when 

Rivera allegedly: (1) stuck his penis inside J.E.‘s vagina; (2) touched J.E.‘s vagina with 

his fingers; (3) rubbed his penis on J.E.‘s vagina; and (4) forced J.E. to watch 

pornographic videos while masturbating. Based on the allegations made by J.E., Rivera 

engaged in numerous instances of sexual assault or, in other words, multiple events. 

Therefore, we cannot say that the outcry witnesses‘ testimony repeated information 

about the same event and was, therefore, inadmissible under article 38.072. See id.; 

see also TEX. CODE CRIM. PROC. ANN. art. 38.072. 

Moreover, several witnesses testified that J.E.‘s story regarding the ongoing 

sexual abuse changed slightly each time she told it. In particular, Jimenez stated that 

J.E. appeared to engage in what is known as ―incremental disclosure,‖ wherein the child 

victim discloses additional information about ongoing incidences of abuse each time 

they speak to someone with whom they are comfortable. Further, Rosenstein and Goltz 

described J.E. as having post-traumatic stress disorder, which affected her ability to 

convey detailed descriptions of the two years of alleged sexual abuse. The 

inconsistencies in J.E.‘s outcry statements and the fact that the sexual abuse was 

repeated and ongoing for two years do not support Rivera‘s contention that the 

complained-of testimony was repetitive and, thus, inadmissible. 

Based on our review of the record, it appears that an objection to the 

complained-of testimony would not have been successful. Instead, on crossexamination, trial counsel questioned most of the witnesses regarding the changes in 
13

J.E.‘s story about the two-year period of sexual abuse. Such questioning was likely 

done to undermine J.E.‘s credibility before the jury and, therefore, appears to be 

grounded in legitimate trial strategy. See Garza v. State, 213 S.W.3d 338, 348 (Tex. 

Crim. App. 2007) (stating that if counsel‘s reasons for his conduct do not appear in the 

record and there is ―at least the possibility‖ that the conduct could have been grounded 

in legitimate trial strategy, we will defer to counsel‘s decisions and deny relief on an 

ineffective-assistance claim on direct appeal). Furthermore, even assuming that trial 

counsel‘s failure to object to hearsay statements was not grounded in reasonable trial 

strategy, Rivera has not clearly demonstrated that there is a reasonable probability that, 

but for his trial counsel‘s unprofessional errors, the result of the proceeding would have 

been different, especially considering that J.E. testified about the ongoing sexual abuse, 

and a child victim‘s testimony alone is sufficient to sustain a conviction for sexual 

assault. See Strickland, 466 U.S. at 684; see also TEX. CODE CRIM. PROC. ANN. art. 

38.07 (Vernon 2005) (providing that the testimony of the sexual abuse victim alone is 

sufficient to support a conviction based on that abuse); Ozuna v. State, 199 S.W.3d 

601, 606 (Tex. App.–Corpus Christi 2006, no pet.) (same). We, therefore, overrule 

Rivera‘s first sub-issue. 

V. THE CHILD VICTIM’S TRUTHFULNESS

In his second sub-issue, Rivera argues that his trial counsel was ineffective for 

failing to object to opinion testimony regarding the credibility of J.E. In particular, Rivera 

complains about the opinion testimony of Investigator Flores, S.E., and Goltz regarding 

J.E.‘s truthfulness and states that this testimony constituted impermissible bolstering. 

The State asserts that Rivera‘s trial counsel likely did not object to this testimony 

because the witnesses were ―coming across as biased‖; thus, an objection would not 
14

have been beneficial. The State also points out that Rivera‘s trial counsel elicited 

testimony from Rivera‘s wife that the child victim was a ―good little girl‖ who had a 

tendency to lie and make up stories. 

A. Applicable Law

―Bolstering occurs when one party introduces evidence for the purpose of adding 

credence or weight to earlier unimpeached evidence offered by that same party.‖ 

Rousseau v. State, 855 S.W.2d 666, 681 (Tex. Crim. App. 1993) (citing Guerra v. State, 

771 S.W.2d 453, 474 (Tex. Crim. App. 1988). The court of criminal appeals has also 

stated that bolstering evidence is:

any evidence the sole purpose of which is to convince the fact[-]finder 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.‖ Accordingly, evidence that corroborates

another witness‘ story or enhances inferences to be drawn from another 

source of evidence, in the sense that it has an incrementally further

tendency to establish a fact of consequence, should not be considered 

―bolstering.‖

Cohn v. State, 849 S.W.2d 817, 819-20 (Tex. Crim. App. 1993) (emphasis in original) 

(citation omitted). 

―Regardless of whether a witness is impeached, additional evidence to the same 

effect is not  ̳bolstering‘ if . . . it makes any substantive contribution or incrementally 

tends to further a fact of consequence.‖ Briones v. State, 12 S.W.3d 126, 129 (Tex. 

App.–Fort Worth 1999, no pet.). It is not improper bolstering if the testimony elicited is 

used to rebut prior impeachments by opposing counsel. See Skeen v. State, 96 S.W.2d 

567, 578 (Tex. App.–Texarkana 2002, pet. ref‘d) (―Testimony elicited to rebut prior 

impeachments by opposing counsel is not considered improper bolstering.‖) (citing 
15

Anderson v. State, 717 S.W.2d 622, 629 (Tex. Crim. App. 1986)); see also Sepulveda v. 

State, No. 13-07-627-CR, 2009 Tex. App. LEXIS 981, at *17 (Tex. App.–Corpus Christi

Feb. 12, 2009, pet. ref‘d) (mem. op., not designated for publication).

B. Discussion

In this sub-issue, Rivera complains about statements made by Investigator 

Flores, S.E., and Goltz regarding J.E.‘s truthfulness. In particular, Rivera asserts that 

―[i]t is generally improper for a witness to offer a direct opinion as to the truthfulness of 

another witness and such opinion is therefore inadmissible.‖ Blackwell v. State, 193 

S.W.3d 1, 21 (Tex. App.–Houston [1st Dist.] 2006, pet. ref‘d). According to Rivera,

testimony from Investigator Flores, S.E., and Goltz amounted to inadmissible bolstering 

of J.E.‘s credibility.

After reviewing the complained-of testimony, we are unable to find any instance 

of inadmissible bolstering. With respect to Investigator Flores, Rivera directs us to 

testimony on re-direct examination whereby Investigator Flores denied that J.E. made 

up her stories because she hated Rivera and stated that she believed J.E.‘s outcry 

statements. However, Rivera fails to consider that his trial counsel put J.E.‘s credibility 

at issue numerous times throughout the trial and especially during his first crossexamination of Investigator Flores. Specifically, during his first cross-examination, 

Rivera‘s trial counsel impeached Investigator Flores with evidence that police did not 

follow up in investigating C.L.‘s boyfriend as a possible suspect and asked whether 

Investigator Flores ―believe[d] the child‖ regarding whether Rivera was the perpetrator of 

these offenses. Therefore, with respect to Investigator Flores, the State was entitled to 

question Investigator Flores on re-direct examination about J.E.‘s truthfulness to rebut 

prior impeachment by Rivera‘s trial counsel. See Anderson, 717 S.W.2d at 629; Skeen, 
16

96 S.W.2d at 578; see also Sepulveda, 2009 Tex. App. LEXIS 981, at *17. The same is 

true with respect to S.E. and Goltz‘s testimony. Rivera‘s trial counsel questioned S.E. 

and Goltz about the changes in J.E.‘s stories regarding the incidents, thus putting J.E.‘s 

credibility at issue. On re-direct examination, the State questioned S.E. and Goltz about 

whether J.E. would make up stories about Rivera. Therefore, because the State was 

entitled to rebut Rivera‘s prior impeachment of Investigator Flores, S.E. and Goltz 

regarding J.E.‘s truthfulness, an objection would have likely been overruled. As such, 

we cannot say that Rivera has satisfied the first prong of the Strickland analysis. See

466 U.S. at 684. Accordingly, we overrule Rivera‘s second sub-issue.

VI. THE PROSECUTOR’S CLOSING ARGUMENT

In his third sub-issue, Rivera contends that his trial counsel should have objected 

to statements made by the prosecutor during his closing argument about J.E.‘s 

truthfulness. The State argues that the complained-of statements during the 

prosecutor‘s closing argument constituted a permissible summation of the evidence and 

a reasonable deduction from the evidence; therefore, Rivera‘s trial counsel did not err in 

failing to object to the State‘s closing argument because such an objection likely would 

not have been successful. 

A. Applicable Law

Permissible jury argument generally falls into one of four areas: (1) summation 

of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the 

argument of opposing counsel; or (4) a plea for law enforcement. Brown v. State, 270 

S.W.3d 564, 570 (Tex. Crim. App. 2008); Berry v. State, 233 S.W.3d 847, 859 (Tex. 

Crim. App. 2007).
17

Even when an argument exceeds the permissible bounds of these 

approved areas, such will not constitute reversible error unless, in light of 

the record as a whole, the argument is extreme or manifestly improper, 

violative of a mandatory statute, or injects new facts harmful to the 

accused into the trial proceeding.

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (citing Todd v. State, 

598 S.W.2d 286, 296-97 (Tex. Crim. App. 1980)). ―The remarks must have been a 

willful and calculated effort on the part of the State to deprive appellant of a fair and 

impartial trial.‖ Id. (citing Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)).

Nevertheless, when analyzing any harm that may have been caused by an 

improper jury argument, we examine the following factors: (1) the severity of the 

misconduct (the magnitude of the prejudicial effect of the prosecutor‘s remarks); (2) 

measures adopted to cure the misconduct (the efficacy of any cautionary instruction by 

the judge); and (3) the certainty of conviction absent the misconduct (the strength of the 

evidence supporting the conviction). Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. 

App. 2004) (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on 

reh‘g)).

In analyzing the State‘s remarks during closing argument, we must not consider 

the statement in isolation; instead, we should review the closing arguments of both 

parties in order to determine the context in which the complained-of statements were 

made. See Wilson v. State, 938 S.W.2d 57, 61 (Tex. Crim. App. 1996) (―The applicable 

legal standard of review is whether, in light of the record as a whole, there is a 

reasonable possibility the improper argument might have contributed to appellant‘s 

conviction.‖); see also Ozuna, 199 S.W.3d at 613 (holding that the complained-of jury 

argument is considered in light of the record as a whole).
18

B. Discussion

On appeal, Rivera specifically complains about the following statements made 

during the State‘s closing argument:

I mean, I—I hope, when you go back to deliberate and you think 

about that that—that troubles you as much as it troubles me because it 

doesn‘t make any sense that [J.E.] would lie about this only because she‘s 

been told she can‘t come around because she‘s making the house dirty, 

and she is the only one making this claim.

. . . .

So—so why would [J.E.] make up a story that gets her, oh, my 

God, in all this hot water? I mean, she had to get up here and say things 

in front of—in front of 13 total strangers? I mean, imagine if you had to do 

that. Imagine—we‘re not talking about raping. Imagine if some said, 

―Juror, take the stand and talk about the way things are with your wife at 

night,‖ I mean, you would be mortified, right? So how do you think that 

little kid felt like when she had to sit here and talk about what happened, 

right. Why would she put herself through that if it wasn‘t true? I mean, 

that just doesn‘t make sense.

. . . .

And you saw her demeanor when she was up there. I mean, what does 

that tell you? She‘s telling the truth. I mean, what nine or ten year old 

would know that a man‘s erect penis is big, brown and pointy, right? I 

mean, where do you think she got that? Do you think that just came to her 

in her dreams?

During trial, Rivera‘s trial counsel repeatedly asked witnesses about the changes 

in J.E.‘s stories regarding the incidents. Furthermore, both Blanca and Rivera testified 

that J.E., C.L., S.E., and others lie constantly to get their way. Therefore, Rivera‘s 

defensive theory was that these allegations were falsely made in an attempt to get 

Rivera in trouble, which as Rivera explained, was probably due to Rivera‘s refusal to 

baby-sit his grandchildren anymore. In his closing statement, the prosecutor responded 

to this defensive theory and explained that J.E. did not have a motive to lie about 
19

Rivera. See Brown, 270 S.W.3d at 570; Berry, 233 S.W.3d at 859; see also Wolfe v. 

State, 917 S.W.2d 270, 280-81 (Tex. Crim. App. 1996) (stating that rhetorical questions 

are generally within the scope of jury argument so long as they are based upon a 

reasonable deduction from the evidence and that a prosecutor ―may argue his opinions 

concerning issues in a case so long as the opinions are based on evidence in the 

record and not as constituting unsworn testimony‖). The prosecutor also summarized 

the evidence adduced at trial, including testimony from J.E. about what Rivera‘s penis 

looked like. See Brown, 270 S.W.3d at 570; Berry, 233 S.W.3d at 859. Because the 

portion of the prosecutor‘s closing argument about which Rivera complains constitutes a 

summation of the evidence and a response to Rivera‘s defensive theory, we cannot say 

that the prosecutor‘s closing argument was improper. See Brown, 270 S.W.3d at 570; 

Berry, 233 S.W.3d at 859. Thus, an objection by Rivera‘s trial counsel to the 

prosecutor‘s closing argument likely would not have been successful. As a result, we 

overrule Rivera‘s third sub-issue.

VII. CONCLUSION

Having overruled all of Rivera‘s issues on appeal, we affirm the judgment of the 

trial court.

____________________

ROGELIO VALDEZ

Chief Justice

Do not publish. 

TEX. R. APP. P. 47.2(b)

Delivered and filed the 

10th day of March, 2011.