### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00501- CR

Randy Ates, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 427 TH JUDICI AL DISTRICT NO. D-1 -DC- 06- 3020 99, H ONO RAB LE JO N N. WI SSER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

We withdr a

w o u r o p in io n o f D e c e mb er 10, 2010, and substitut e the following opinion in its pl ace . Appellant’s motion for r ehea ring is denied. Randy Ates was convicted of one count of indece ncy with a child by contac t and three
counts of ag g rava ted sexual assault of a child. See Tex. Penal Code Ann. §§ 21.11, 22.021(a) (1)( B) (West Supp. 2010). Punishm ent was assessed at twenty y ear s’ confine ment for the indece ncy count and forty y ear s’ confine ment for eac h assault count, all sentenc es to run concur rently

. Ates appea ls, arg uing that (1) the evidenc e ag ainst him wa s leg ally and fac tually insufficient; (2) the jury char g e did not proper ly specify on which of the m any alleg ed incidents of abuse the S tate ele cted to see k conviction; (3) the jury char g e contained err oneous definitions of “intentionally ” and “knowing ly ”

as thos e t er m s perta ined to the sexual-assault offe nses; (4) the trial court err ed by allowing a detec tive to testify that during an interview she found Ates’s victim to be “truthful”; and (5) the trialcourt err ed by allowing a child witness to testify to events he alleg edly witnessed when he was

approximately

two y ear s old. W e will aff irm.

F ACTUAL AND P ROCEDURAL BACK GR OUND A.A., the alleg ed victim in this case , testified that Ates sexually assaulted her many t imes over a sever al-y ear period. The first assault, which the trial participa nts dubbed t h e “bathr oom” incident, alleg edly occur red when A.A. was approximately six y ear s old. Ates was living in A.A.’s home at t he ti me along wi t h his g irlfriend and the m other of his children, Debbie Dura n (A.A.’ s aunt). A.A. testified that one day while she and Ates wer e the only people at home, Ates came into the bathroom as A.A. was finishi n g u s i n g i t

. Ates alleg edly told A.A. to sit back down on the toilet. He then alleg edly too k o ff h er pants, took off his own pants, and proce eded to r

ub his penis on her va g ina until he ejac ulated. Af terwa rds he alleg edly told A.A . to take a bath or showe r. 1 A second g roup of incidents, which the trial participa nts dubbed the “master bedroom” incidents, occur red when A.A. was approximately eig ht y ear s old. A.A. was still living with Ates, Dura

n, and their children at the time, but in a differ ent house from the one in w hich the bathroom incident alleg edly occur red. A.A. testified that on occa sions when Ates was the only adult at home with the childre n, he would fr equently assig n them “chor es.” A .A.’s “c hore” was alway s to “cle an” Ates’s bedroom. Whil e the other children did chore s elsewhe re in the house, Ates would alleg edly car

ry A.A., kicking and scre aming , to his bedroom, wher e he would lay her on the bed and

At trial, A.A. could not reme mber whether Ates told her to take a bath or a shower. Ates 1 later a rg ued to the jury

that this fact showe d A.A.’s story was inconsistent. 2undress her. He would then alleg edly either perf orm oral sex on her or remove his own clothes, lay

on top of her, and rub his penis on her vag ina until he ejac ulated. A.A. testified that such incidents

o cc u rr ed more than fiftee n times. On one occa sion, A.A. tried to resist by picking up a bedsi d e phone and hitting Ates in the hea d with it. A.A. testified t hat Ates “punished” her by flipping he r

over a nd penetr ating her a

nus with his penis. 2 The third incident, which the trial participa nts dubbed the “van” i n ci d en t, also

occur red when A.A. was approximately eig ht y ear s old. A.A. testified that Ates occa sionally drove her and the other children to a neig hborhood swimming pool. Ates would let the other children exit his va n to play in the pool but would make A.A. stay in the van with him. A.A. testified that Ates would remove her clothes, remove his own clothes, lie on top of her, and rub his penis on her vag ina until he ejac ulated. She also testified th at At es wo u ld occa sionally “bar ely ” penetr ate her vag ina with his penis. On the occa sion that was dubbed the “van” incident in the trial court, A.A. rec alled that Ates used a

strawbe rry -sce nted lubrica nt. A.A. did not repor

t Ates’s abuse u n t i l s he was approximately fiftee n y ear s old. Be tween the ag es of 10 and 15, A.A. did not live with Ates; rathe r, she lived with her mother and her mother’s boy friend. Her mother’s boy friend sexually assaulted A.A. during that time, eventua lly resulting in her becoming preg nant. I n t h e course of explaining the preg nancy to her family and boy friend, A .A. re veale d that she had be en abuse d by Ates.

Ates’s indictment and the jury char g e both contained two sexual-assault counts arising 2 from bedr oom incidents: one based on or al sex and one base d on anal pe netra tion. 3A.A.’s family repor ted her abuse to the police, who beg an investiga ting. Detec tive J issett Gaslin interviewe d A.A. and then i nterview ed Ates. Eventually Detec tive Gaslin obtained

a war rant for Ates’s arr est. A g rand jury indicted Ates for three counts of ag g rava ted sexual assault

o f a chil d, three counts of indece ncy with a child by contac t, and four counts of indece ncy wit h a child by exposure. Ates plea ded not g uilty and we nt to trial. At trial, A.A. testified to the abuse she suffe red at Ates’s hands. Ates’s son, Xavier , also testified. Xavier had lived with At es an d A. A. during the period when Ates was alleg edly abusing A.A. Xavier test i fi ed t h at once, at ag e two, he witnessed Ates touching A.A. while both

wer e naked. The incident alleg edly occur red in Ates’s bedroom. Xavier testified t hat during t he 3 incident a por

nog raphic videotape w as playing on a television in the room. Xavier ’s sister, Sabrina, who also lived with A tes and A.A. during the period when Ates was alleg edly abusing A.A., testified that she once hear d A.A. scre am “help” and “stop it” while A.A. was alone in a room with A tes. Sabrina testified that at the time she thought A.A. wa s

scre aming beca

use she wa s being spanked. Xavier and Sabrina’s mother, Debbie Dura n, testified that on one occa sion when she

was living with Ates, she enter ed a bedroom and saw Ates l eaning over a bed in which A.A. was ly ing under the cover s. Ates had his hand under the cover s, and Dura n testified that it “d[idn’t] look rig ht.” Dura

n asked Ates what was g oing on, and he said that he was try ing to rec over a “sippy cup” that A.A. was hiding under the cover s. Dura n was suspicious and asked A.A. if Ates was telling the

The State did not ultimately elec t to use this incident as a basis for seeking a convic tion. 3 4truth. A.A. initially replied that he was, though she testified that she eventua lly told Dur an he was

not. Duran, how ever , did not testify that A.A. eve ntually

said Ates wa s ly ing. Sally Martinez-Cortez was Ates’s g irlfriend at the t i me Ates was arr ested. She testified that afte r the police interviewe d Ates, he came to her house and “g utted” her dishwasher so that he could hide in it if the police came to arre st him.

Police office r David Nordstrom testified that when he went with a g roup of office rs to arr est Ates at the house wher e Ates was st ay ing, Ates climbed out the back window and attempted to flee

.

At the jury -cha

rg e confe renc e, the parties discussed the State’s need to elec t a single instance of abuse as the basis for eac h count in the char g e. The court denoted the instances the State elec ted by inserting “bathr oom,” “master bedr o om,” and “van” in pare ntheses under eac h of the
counts in the char g e. Ates objected to this method of denoting the State’s elec tions, arg uing that the “bathr oom” and “master bedroom” counts should specify the addre sses of the houses in which they

occur red and the “van” count should specify that it occur red “in a parking lot at a public swimming 4 pool.” The c ourt overr

uled this objection. The jury char g e ultimatel y co n t ai n ed seven counts. On the basis of the bathroom incident, the char g e contained one count of ag g rava ted sexual assault, one count of indece ncy with

a child by contac t, and one count of indece ncy with a child by exposure. On the basis of the master bedroom incidents, the char g e contained one count of ag g rava ted sexual assault involving oral sex,

one count of ag g rava ted sexual assault involving anal penetr ation, and one count of indece ncy with

Reca ll that Ates and A.A. lived tog ether in two differ ent houses. 4 5a child by contac t. Finally , on the basis of the van incident, the char ge co n t ai n ed one count of

indece ncy with a child by contac t. The char g e instructed the jury that if it found Ates g uilty on the assault counts arising from the bathroom and bedroom incidents, it should not g o on to consider the indece ncy counts arisingfrom those incide nts. T h e ju r y f o u n d A tes g uilty on all three bathroom- and bedroom-r elat e d a s s a u lt c o u n ts

. Acc ording ly , it did not reach the bathroom- and bedroom-r elated inde cenc y counts. The jury

also found Ates g uilty on the van-r elated ind ece ncy count. Ates elec ted for the court to assess punishment. The cour

t imposed a forty -y ear

sentenc e for eac h of t he assault counts and a twe nty

y ear sentenc e for

the indece ncy

count. Ates a

ppeals.

STANDARD OF REVIEW When an appellant challe n ges the sufficie ncy of the evidenc e supporting his conviction, we examine all of the evidenc e adduce d at trial in the light most favor able to the verdic t and ask whether the jury was rationally justified in finding g uilt bey o n d a re as o nable doubt. Brooks v. State , No. PD-0210-09, 2010 Tex. Crim. App. L EXI S 1240, at *14 (Tex. Crim. App. Oct. 6, 2010). 5 A claim of jury -cha rg e err or is revie wed using the proce dure s et o u t i n Almanza v. State , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985). Barrios v. State , 283 S.W .3d 348,

The court of criminal appea ls rec ently did awa y with fac tual-suffic iency revie w on the basis 5 that it was “bar ely distinguishable” from leg al-suff iciency revie w. See Brooks v. State , No. PD0210-09, 2010 Tex. Crim. App. L EXI S 1240, at *2 (Tex. Crim. App. Oct. 6, 2010). Thus, in this opinion, we do not rec ite separ ate re v i ew standards for leg al and fac tual sufficie ncy even though Ates make s arg uments under both standa rds in his appellate br ief. 6350 (Tex. Crim. App. 2009). The f irst step is to determine whe ther ther e wa s err or in the cha rg e. Id

. I f there was e rror and appellant objected to the err or at trial, reve rsal is r equire d if the err or “is calc ulated to injure the rig hts of the defe ndant,” which means that there is “some harm.” Id

. I f the

err or wa s not objected to, it must be “funda mental” to warr ant re versa l, which mean tha t it was so eg reg ious and cre ated suc h harm that the de fenda nt did not have a f

air a nd impartial trial. Id

. We revie w trial court ruling s on the admissibili ty of evidenc e for abuse of discretion. Carrasco v. State , 154 S.W .3d 127, 129 (Tex. Crim. App. 2005 ). We will uphold a trial court’s deter mination on the admissibili ty of evidenc e if it is rea sonably supported by the rec ord and corr ect under a ny applicable leg al theory

. Id

.
DISCUSSIO N Ates raises sever al i ssues on appea l. First, he a rg ues that the evidence ag ainst him

was leg ally and fac tually insufficient. Second, he arg ues that the jury char g e did not proper ly specify the alleg ed incidents of abuse on which the State e lected to se ek convic tion. Third, he ar g ues that the jury char g e conta ined er

roneous de finitions of “intentionally ” and “knowing ly ” as those te rms perta ined to the sexual-assault offe nses. Fou rt h, he arg ues that the trial court err ed by allowing a detec tive to testify that during an interview she found A.A. to be “truthful.” Fifth, he arg ues that the trial court err ed by al l o wi n g Xavier to testify to events he alleg edly witnessed when he was approximately

two y ear s old. W e will addre ss these ar g uments in turn. Sufficiency of

the Evidence Ates ar g ues that the evidenc e adduc ed at tria l was leg ally and fa ctually

insufficient
to sustain his con v i ct i on. Be cause the court of criminal appea ls rec ently did awa y with fac tual7sufficie ncy revie w, see Brooks , Tex. Crim. App. L EXI S 1240, at *2, we will consider only whether

the evidenc e was leg ally sufficie nt. See id

. (holding that the “leg al-suff iciency standard is the only standard that a revie wing court should apply in deter mining whether the evi d en ce is sufficie nt to support eac h element of a criminal offe nse that the State is requi re d t o p ro v e bey ond a

rea sonable doubt”)

.

Ates arg ues t hat t he evidence was i nsufficie nt for severa l rea sons. First, he arg ues that there was no evidenc e he owned a van at the time the van incident alleg edly occur red. Specifica lly , he notes that his cer tificate of title for the van was dated 2002, wher eas the van incident alleg edly occur

red some time betwee n 1996 and 2000. This appar ent discrepa ncy does not establish that the jury was unrea sonable in finding t h at At es assaulted A.A. in the van; the jury could have conclude d that Ates possessed the van befor e he held title to it, that A.A. was mistaken about when the van incident occur

red, or that some other fac t acc ounted for the discrepa ncy . The jury is entitled
to wei gh and resolve conflicts in the evidenc e and draw rea sonable infere nces there from. Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). That being the case , we cannot say the jury acte d unrea sonably in cre diting A.A.’s testimony about the van incident and minimi zing the signific ance of the fa ct that Ates may not have he ld titl e to the van w hen it occur red. Second, Ates arg ues that much of the testimony ag ainst him was char acte rized by “objec tive unlikelihood.” For example, he arg ues that the purported “log istics” of the bathroom incident wer e dubious. We take this essentially to be an arg ument that A.A.’s testimony about the 6 bathroom incident was not cre dible. Wit ness cre dibilit y is, howeve r, the exclusive province of the

Ates ar g ues that he phy sically could not, as alleg ed, have stood in front of a six-y ear -old 6 while she wa s seated on a toilet and rubbed his penis on he r vag ina.

8jury , and we will not second- g uess the jury ’s deter minations. See Brown v. State , 270 S.W .3d 564, 568 (Tex. Crim. App. 2008). Ates attacks A.A.’s cre dibilit y in other way s, say ing that her testimony about the duration of the bathroom incident was dubious, that her testimony about who else was in the house during the bathroom incident was inconsistent, and that her testimony about the bedroom incident conflicte d with Xavier ’s. He also highlig hts the many -y ear delay betwee n when A.A. was alleg edly abused and when she repor ted her abuse. Ag ain, we cannot second- g u es s t he jury ’s deter mination that A.A. was c redible. Clayton , 235 S.W .3d at 778.

Finally , Ates arg ues that A.A.’s testimony was not corr ob o ra t ed beca use both the “sippy cup” incident observe d by Dura n and the scre aming hear d by Sabrina wer e “objec tively nonsuspicious.” A.A.’s testimony , howeve r, did not require corr oboration. See Tex. Crim. Proc. Code Ann. ar t. 38.07(a), ( b)(1) (West 2005). I n sum, A tes does not de monstrate that the evidenc e wa s insufficient to suppor t his conviction. We overr

ule Ates’s f

irst issue.

State’s Election an d the Jury Ch arge

Ates arg ues that the jur

y char g e did not proper ly specify the alleg ed incidents of abuse

on which the State elec ted to seek conviction. At the jury -cha rg e confe renc e, the parties discussed the State’s need to e lect a spe cific instanc e of a buse as the ba sis for ea ch count in the char g e. The
court ultimately denoted the instances the State elec ted by inserting “bathr oom,” “master bedroom,”

or “van” in pare ntheses under eac h count i n t h e jury char g e. Ates objected to this method of denoting the State’s elec ti o ns, arg uing that the “bathr oom” and “master bedroom” counts should specify the addre sses of the houses in which they occur red and the “van” count should specify that

9it oc curr ed “in a parking lot at a public swimming pool.” The court overr uled this objection. Ates arg ues that doing so was err or beca use the lack of g eog raphic al specific ity meant the jury might not limit its delibera tion on eac h count to a specific incident. See Phillips v. State , 193 S.W .3d 904, 910 (Tex. Crim. App. 2006) (one purpose of elec tion is to ensure jurors unanimously ag ree one specific incident occ urre d constituting cha rg ed off ense)

. We disag ree . The jury char g e clea rly listed a specific location (“be droom,” “master bedroom,” o r “van” ) in bold font under eac h count in the jury char g e. These locations wer e not vag ue, confusing , or otherwise unspecific

. We presume that t h e j u ry heede d them and limit ed its delibera tions acc ording ly

. See Resendiz v. State , 112 S.W .3d 541, 546 (Tex. C ri m . App. 2003) (appe llate cour

ts presume jury

follows instructions). Ates also arg ues that the jury char g e should not have simply listed a location under

eac h count, but rathe r shoul d have included a location as an element of eac h char g ed offense. He complains that the failure t o include a loc ation as an eleme nt of each offense led to the pos sibili ty of a non- unanimous verdict. He a rg ues, in other words, that location neede d to be included a s an 7 element of eac h offe nse to insure jury unanimity . L ocation is not, howeve r, a materia l element of the offe nses at issue. See Tex. Penal Code §§ 21.11, 22.021(a) (1)( B)

. Ates does not arg ue that the

We note t hat because Ates first urg ed his elec tion reque s t at t h e jury -cha rg e st ag e, there 7 was no issue conce rning whether t h e m ethod of elec tion g ave him sufficie nt notice. See Phillips v. State , 193 S.W .3d 904, 910 (Tex. Crim. App. 2006) (one purpose of elec tion is to “g ive the defe ndant notice of the particula r offe nse the State intends to rely upon for prosec ution and aff ord the d ef en d an t an opportunity to defe nd”). That is to say , Ates’s elec tion reque st came too late to serve the purpose of ensuring that he had notice. See id

. at 912 (to prese rve rig ht to notice, defe ndant must make elec tion reque st at close of S t at e’s case -in-chie f). Thus, jury unanimity is the only elec tion-relate d conce rn we addre ss. 10jury char g e left out any materia l elements of the char g ed o ff en s es ; rather, he arg ues that the jury char g e should have included additional elements in the for

m of locations and a ddresse s. “Una nimity ” simply means that “ea ch and ever y juror ag ree s that the d ef en dant committed the same, single , specific criminal act.” Ngo v. State , 175 S.W .3d 738, 745 (Tex. Crim. App. 2005). The trial court chose to addre ss Ates’s unanimity conce rn by indicating t h e S t ate’ s elec tion throug h a header under eac h count in the cha rg e. An “ elec tion” g ener ally require s “ some action that excludes or limit s the jury ’s consideration of an offe nse,” such as a limit ing instruction. Ex parte Goodbread , 967 S.W .2d 859, 861 n.2 (Tex. Crim. App. 1998) (emph as i s added)

. The court’s chosen method of indicating the State’s elec tion, along with an instruction that the jury had
to rea ch a unanimous verdic t to find Ates g uilty on any ind i v i d u al co u n t, serve d to ensure that the jurors ag ree d on a single specific act upon which they returne d a verdic t. We overr ule Ates’s sec ond issue. The Jury Charge’s Definition s of “Intenti onally” and “K nowi ngly” Ates arg ues that the jury char g e err o n eo u s l y define d the terms “intentionally ” and “knowing ly ” as they perta ined to the sexual-assault counts. The State conce des that the char g e

err oneously define d “kno wi ng ly ” but arg ues that this err or is not g rounds for reve rsal beca use (1) Ates did not raise it at trial and (2) it did not cause eg reg ious harm. See Barrios , 283 S.W .3d at 350 (jury -cha

rg e error not raised at trial is not g rounds for reve rsal u n less it was fundamental and

cause d eg reg ious harm).

The jury char g e define d “intentionally ” and “knowing ly ” as follows: “A person acts intentionally , or with intent, when it is his conscious objec tive or desire to eng ag e in the conduc t.

11A person acts knowing ly , or with knowledg e, with respe ct to a result of his conduct when he is awa re that his conduct is rea sonably cer tain to cause the result.” Sex ual assault is a “conduc t” offe nse. See Gonzales v. State , 304 S.W .3d 838, 847 (Tex. Crim. App. 2 0 1 0 ). T h u s , whi le the jury char g e’s definition of “intentionally ” was adequate, the char g e should have define d “knowing ly ” in terms of conduct. See Tex. Penal C o de Ann. § 6.03(b) (West 2003) (“A person acts knowing ly , or with knowledg e, with respe ct t o the na t u re o f his conduct or to circ umstances surrounding his conduct when he is awa

re of the nature of his conduct or that the circ umstances exis t.”). I ts failure to do so

was err or. See Saldivar v. State , 783 S.W .2d 265, 268 (Tex. App.—Corpus Christi 1989, no pet.). But beca use Ates did not object at trial, we can reve rse only if the err oneous definition repr esente d fundame ntal err or and c aused A tes eg reg ious harm. Barrios , 283 S.W .3d at 350.

We hold that it did not. Whil e knowledg e was an element of the State’s proof, Ates did not contest it at trial. Thus, he cannot have been harme d by the err oneous definition in the jury char g e. See Saldivar , 783 S.W .2d at 268 (“ [W ]here no def ense is pre sented whic h would direc tly aff ect a n assessment of me ntal culpability , there is no harm in submitt ing e rrone ous definitions of ‘intentionally ’ and ‘k n o wing ly .’”) ; see also Jones v. State , 229 S.W .3d 489, 494 (Tex. App.—Texarkana 2007, no pet.) (“[T] he int ent of J ones i n touching B.S.S., while i t was a p ar t o f the State’s require d proof, was not a contested issue and co n s eq u entl y J ones could not be eg reg iously harme d by the definition of the intentional and knowing state of mind.”). We overr ule Ates’s third issue.

12Detec tive Gaslin’s Testim ony Ates arg ues the trial co u

r t e r r e d b y admitting Detec tive Gaslin’s testimony that during

a pre- trial i n terview she found A.A. to be truthful. Ates objected to this testimony as calling for “spec ulation,” and the court overr uled his objection. On appea l, Ates arg ues that Gaslin’s testimony

was objectionable for differ ent rea sons, inc luding that it constituted improper bolstering and usurped th e jury ’s prer og ative to deter mine cre dibilit y . Be cause Ates did not raise any of his appellate arg uments at trial, it appea rs that h e h as p re s er v ed nothing for our revie w. See Tex. R. App. P

. 33.1(a) ; Heidelbe rg v. State , 144 S.W .3d 535, 537 (Tex. Crim. App. 2004) (leg al basis o f complaint raised on appea l cannot vary from that raised at trial); Penry v. State , 903 S.W .2d 715, 763 (Tex. Crim. App. 1995). Neve rtheless, for the sake of completene ss, we will enter tain the arg uments he has r aised a t trial and on appe al.

During trial, the following exchang e occ urre d:

PROS ECUTOR: During the time that y ou interviewe d her, did y ou find [A.A.] to be truthful? GASL I N: Yes, I did. DEF ENSE COUNSEL : Objection, Your Honor. I think this calls for specula tion and it’s outside of her persona l knowledg e. Ask that the an s we r b e stricken from the rec ord and the jury

instructed. PROS ECUTOR: Actually it is within her persona l knowledg e. I ’m asking her what her opinion of the vic tim’s truthfulness was as she was intervie wing her. DEF ENSE COUNSEL : Calls for an opinion. They ’re calling for spe culation. THE COURT: Over

ruled. PROS ECUTOR: Did y ou find [A.A.] to be truthful during that interview?
13GASL I N: Yes, ma’ am.

Ates’s objection of “spec ulation” is without merit; Gaslin testified that she found A.A. truthful during her inter

view, not that A.A. was objectively truthful. I n other words, Gaslin expressed her persona l opinion of A.A.’s truthfulness. Doing so obviously did not require her to specula te about matters bey ond her pe rsonal knowledg e.

For the sake of arg ument, we will trea t Ates ’s o b j ec t i on not as being about “spec ulation” per se but rathe r about Gaslin commenting on another witness’s truthfulness. To the
extent that Ates’s objection can be construed t h at wa y , it had merit; it is indeed improper for one witness to comment on another witness’s truthfulness. See Y ount v. S t ate , 872 S.W .2d 706, 708 (Tex. Crim. App. 1993 ). T h u s , v i ewe d in that light, we will consider whether the admission of Gaslin’s testimony

war rants re versa l. The improper admission of “truthfulness” testimony is non-constitutional err or. See W ilson v. State , 90 S.W .3d 391, 393 (Tex. App.—Dallas 2002, no pet.). Thus, we will not overturn Ates’s criminal conviction on the basis of Gaslin’s testimony if, afte r ex amining the rec ord as a whole, we have fair assuranc e that the error did not influence the j u ry , or i nfluenc ed the jury only slightly

. Schutz v. State , 63 S.W .3d 442, 443 (Tex. Crim. App. 2001). This means that we consider

ever y thing in the re co rd, including testimony and phy sical evidenc e, the nature of the evidenc e supporting the verdic t, and the cha rac ter of the err or and its re lationship to ot her e vidence

. Id

. Having revie wed the rec ord as a whole, we conclude that Gaslin’s testimony does not

war rant reve rsal. A.A., who was 19 at the time of trial, testified extensively and was cross-e x amined extensively

. This means that the jury had ample opportunity to form its own op inion of A.A.’s
14cre dibilit y befor e Gaslin took the stand. I t there fore seems highly unlikely th at Gaslin’s

objectionable te s ti mo n y

— w h ich was exceeding ly brief, consisting of a three -word answe r to a single q u e s ti o n

— s ig n if ic a n tl y impa cted the jury ’s opinion of A.A.’s cre dibilit y . I ndeed, Gaslin’s testimon y

m er ely stated the obvious; g iven that Gaslin took A.A.’s interview to be a basis for investiga t i n g Ates, any rational jury would have in fe rr ed that Gaslin found A.A. truthful during the interview. Fur thermore , in responding to Ates’s “spe culation” objec tion, the prosecutor stated in front of the jury that she was asking Gaslin only “wha t her opinion of the victim’s truthfulness was as she was interviewing her ” (empha s i s added) ; the prosec utor highlig hted, in other words, that she was not asking Gaslin to comment on A.A.’s objective truthfulness or the truthfulness o f A.A.’s trial testimony

. This fac t makes it even less likely that Gaslin’s testimony aff ecte d the jury ’s opinion of A.A.’s cre dibilit y as a trial witness. For all these rea sons, we hold that even if Ates prese rved err or reg arding the admission of Gaslin’s testimony , that err or was no t s u fficiently harmful to war rant

reve rsal. We over

rule Ate s’s fourth issue.

Xavier’s Te

stim ony Finally , Ates arg ues that the trial court err ed by allowing Xavier to te stify to e vents he alleg edly witnessed when he was approximately two y ear s old (Xa vier was 12 at the time of trial). Ates arg ues that beca

use Xa vier wa s so y oung when he alleg edly witnessed the events, he was not competent to testify about them later. See W atson v. State , 596 S.W .2d 867, 870 (Tex. Crim. App. 1980) (in deter

mining competenc y of witness, court must assess whether wi t n es s had capa city to observe intelligently at time of events in question). Ates did not object to Xavier ’s testimony on this

15basis at trial, howeve r, so, as he acknow ledges , i t wi ll not serve as g rounds for reve rsal unless it

constitutes fundamenta l error

. See Tex. R. Evi d. 103(d).

We hold that admitting Xavier ’s testimony was not fundame ntal err or. Children

are competent to testify unless, “af ter being examined by the court, [t hey ] appea r not to possess sufficie nt intellect to rela te trans actions with respe ct to which they are interrog ated.” Id

. R. 601(a) (2). There is no minimum ag e at which a child can be a competent witness. Upton v. State , 894 S.W .2d 426, 429 (Tex. App.—Amar illo 1995, writ ref ’d); Berotte v. State , 992 S.W .2d 13, 17-18 (Te x . App.—Houston [1st Dist.] 1997, no writ). Having r eviewe d Xavier ’s testimony , it is clea r t hat t he trial court did not abuse its discretion by trea ting Xavier as competent. After taking the oath and explaining what it meant, Xavier succe ssfully answe red a series of questions about his ag e, his schooling , his interests, and Ates’s identity

. He then succe ssfully answ er ed a series of questions about the sexual assault he witnessed. He coher ently descr ibed what he had seen and used dolls to demonstrate it to the jury

. He also underw ent a cross-e x amination, and the answe rs he g ave

wer e consistent. Nothing in the record sugg ests, much l ess establishes, that Xavier was unable to intelligently

observe , proce ss, or rec all the abuse he witnessed a t ag e two. Admitting Xavier ’s testim o n y wa s not fundame ntal err or for a second rea son: the testimony was not essential to Ates’s conviction. See Almanza v. State , 686 S.W .2d at 171-72 (er ror is fundame ntal only if so eg reg ious and harmful that it d ep ri v es d efe ndant of rig ht to fair trial). A.A.’s tes t i m o n y was in and of itself sufficie nt to support a conviction. Ates claims that Xavier provided critica l corr oboration of A.A.’s testimony , but A.A.’s testimon y r e q u ired no corr oboration. See Tex. Crim. Proc. Code art. 38.07(a), (b)(1). Fur thermore , the S tate did not ultimately elec t to

16seek a conviction on the basis of t he episode that Xavier witnessed and t es t i fi ed ab o u t. Thus, we

conclude that admitting Xavier ’s testimony was not fundame ntal err or. We overru l e At es’s fifth issue.

CONCLUSION

For the re asons stated a

bove, we aff

irm the trial cour

t’s judgme nt.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med on Motion for Rehea ring Filed: F ebrua

ry 4, 2011 Do Not Publish

17