NO. 07-10-0318-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 21, 2011

RENE L. FRANCO, 

Appellant

v.

THE STATE OF TEXAS, 

Appellee

___________________________

FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;

NO. 5920; HONORABLE KELLY G. MOORE, PRESIDING

Opinion

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Rene L. Franco challenges his conviction of sexual assault of a child by 

contending 1) the evidence is legally insufficient to support it, and 2) the trial court erred 

in admitting evidence that improperly bolstered the complainant’s purported 

truthfulness. We affirm the judgment. 

Sufficiency of the Evidence

We review the sufficiency of the evidence under the standard discussed in 

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Brooks v. 
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State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). Next, appellant was charged with 

intentionally and knowingly causing the penetration of the sexual organ of his niece (by 

marriage), who was under seventeen years of age, by his sexual organ. See TEX. 

PENAL CODE ANN. §22.011(a)(2) (Vernon Supp. 2010). At trial, the complainant 

testified that appellant raped her by putting his penis inside her vaginal area when she 

stayed the night at the home of her aunt and uncle. She did not report the attack until a 

month later when she was being disciplined for allowing a boy to enter her bedroom at 

night for the purpose of having sex. The evidence allegedly is insufficient to prove guilt

because it consists of “a string of misleading facts and inconsistent testimony from the 

complainant.” We overrule the issue.

 The testimony of the complainant alone, if believed by the jury, is sufficient to 

support the conviction. TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (Vernon 2005); 

Perez v. State, 113 S.W.3d 819, 838 (Tex. App.–Austin 2003, pet. ref’d), overruled in 

part on other grounds by Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008); 

Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d). 

Any inconsistencies in the evidence were for the jury to resolve, as were issues 

regarding the credibility of the complainant and the other witnesses, and we are 

required to defer to its determination on those issues.1 Brooks v. State, 323 S.W.3d at 

902 n.19. 

 

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Appellant particularly points to 1) testimony from a police officer that the complainant told him 

she screamed at the time of the assault although she denied at trial that she had done so, 2) the fact that 

the complainant told her parents of the assault only after they were outraged over her behavior with a 

boy, 3) the use of “penal code” language by the complainant in describing the assault, and 4) the failure 

of police or the complainant’s parents to seek a medical exam. 
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Admission of Evidence 

Appellant next complains about the admission into evidence of testimony from

the complainant’s mother regarding the truthfulness of her daughter’s allegations.

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 We 

overrule the issue.

Appellant objected below to the utterance on the basis that it constituted a 

“conclusion.” Now, he suggests that it was inadmissible as an attempt to impermissibly 

bolster the credibility of the complainant in violation of Texas Rule of Evidence 701. It is 

true that an attempt to bolster the veracity of a complaining witness generally is 

prohibited because the testimony is not helpful to the jury and, therefore, lacks 

relevance. Arzaga v. State, 86 S.W.3d 767, 776 (Tex. App.–El Paso 2002, no pet.). 

That is, it tends to usurp the resolution of an issue which only a jury can resolve. Id.

(stating that such evidence is inadmissible because it impermissibly decides an issue 

for the jury); accord, Reynolds v. State, 227 S.W.3d 355, 365-66 (Tex. App.–Texarkana 

2007, no pet.) (stating the same). Yet, complaining about evidence on this basis is 

quite different from complaining about it because certain testimony is a conclusion. 

Conclusions may encompass most anything, such as conclusions of law, conclusions of 

fact, and observations lacking factual support or explanation. So too may conclusions 

be quite relevant, though inadmissible for other reasons. Given this, we must conclude 

that the objection asserted below fails to comport with that proffered on appeal. 

Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (stating that the 

 

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The State asked the witness: “Do you believe your daughter when she told you what [appellant] 

did to her?” The witness answered: “Yes.” 
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complaint on appeal must comport with that made at trial). Uttering “conclusion” without 

more is not enough to reasonably inform the trial court that the testimony may violate 

Texas Rule of Evidence 701 (involving opinions given by lay witnesses) or constitute 

impermissible bolstering. Consequently, the complaint before us was not preserved

below. See Arzaga v. State, 86 S.W.3d at 776 n.1 (stating that while a “bolstering 

objection” preserves the complaint for review, the better practice is to object because 

the testimony lacks relevance or constitutes improper opinion testimony). 

Accordingly, the judgment is affirmed.

Brian Quinn 

Chief Justice

Publish.