Opinion filed December 31, 2015

In The

Eleventh Court of Appeals 

__________

No. 11-13-00049-CR

__________

LUIS RAMIREZ RUEDAS A/K/A 

LUIS RAMIREZ RUEBAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 3

Tarrant County, Texas

Trial Court Cause No. 1274451D

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

Appellant, Luis Ramirez Ruedas a/k/a Luis Ramirez Ruebas, was convicted 

of aggravated sexual assault of a child under fourteen years of age and sentenced to 

life imprisonment in the Institutional Division of the Texas Department of Criminal 

Justice. In three issues, Appellant asserts that (1) the trial court abused its discretion 

in determining that a child witness was competent to testify, (2) the trial court erred 
2

in admitting into evidence testimony from multiple outcry witnesses, and (3) the trial 

court erred in overruling defense counsel’s objection to improper jury argument by 

the prosecutor. We affirm.

Background Facts

While eating lunch at a restaurant, K.C. asked her mother, C.G., to go with 

her to the restroom. K.C. was five years old at the time, and she usually went to the 

restroom by herself. K.C. told C.G. that “it was burning” when she used the 

restroom. C.G. asked K.C. whether she had been hurt by her bicycle, and K.C.

replied that she had not. C.G. then inquired whether somebody had touched her, to 

which K.C. answered “yes.” K.C. indicated that Appellant was the one who hurt 

her. K.C. would occasionally visit Appellant’s home and would play with 

Appellant’s child, who was roughly the same age. K.C. stated that Appellant had 

touched her when Appellant’s wife was taking care of her.

K.C. told C.G. that, while she was at Appellant’s home, she needed to use the 

restroom but someone was in the restroom by the living room. She then walked to 

the restroom in Appellant’s bedroom. Upon exiting the restroom, K.C. saw 

Appellant by the bed. K.C. told her mother that Appellant then called her, lifted her 

onto the bed, pulled her underwear down, and touched her vagina. After receiving 

this report from K.C., C.G. returned to the dining area of the restaurant and told her 

husband what K.C. had reported to her. K.C.’s parents took her to Cook Children’s 

Hospital and spoke with a social worker, a nurse, and a doctor about their concerns.

C.G. subsequently filed a statement with the Grand Prairie Police Department. 

She also took K.C. to Alliance for Children, where K.C. was interviewed by Carrie 

Paschall, a forensic interviewer with the Tarrant County District Attorney’s Office. 

Paschall was designated as an outcry witness and allowed to testify regarding what 

K.C. had told her. K.C. told Paschall that, after coming out of the restroom at 
3

Appellant’s house, she was taken by Appellant into a room where he laid her down, 

pulled her pants and underwear down, and made contact with her vaginal area with 

his belt, which caused her pain.

The State called K.C. as a witness at trial. The trial court conducted a hearing 

outside the presence of the jury prior to her testimony to determine her competency 

to testify. The trial court found K.C., who was six years old at the time of trial, to 

be a competent witness. K.C. testified that, after using the restroom at Appellant’s 

house, she climbed onto the bed in Appellant’s bedroom. She further testified that 

Appellant removed her underwear and penetrated her vagina with either his penis or 

his belt. K.C. testified that Appellant told her not to tell anyone about what he had 

done.

The jury convicted Appellant of aggravated sexual assault of a child and 

indecency with a child by contact and exposure. At the request of Appellant, the 

judgment was reformed to a single conviction of aggravated sexual assault of a child. 

In a special issue submitted at the punishment phase, the jury determined that the 

victim was a child younger than six years of age at the time of the offense.

Analysis

In his first issue, Appellant asserts that the trial court abused its discretion in 

determining that K.C. was competent to testify. Appellant contends that K.C. gave 

answers that were inaccurate and showed an inability to intelligently observe events 

in question. He also argues that she lacked the capacity to recollect or narrate events. 

A trial court’s determination of whether a child witness is competent to testify is 

reviewed under an abuse of discretion standard. Broussard v. State, 910 S.W.2d 

952, 960 (Tex. Crim. App. 1995). We review the child’s responses to qualification 

questions, as well as the child’s entire testimony, to determine whether the trial 

court’s ruling constituted an abuse of discretion. Davis v. State, 268 S.W.3d 683, 
4

699 (Tex. App.—Fort Worth 2008, pet. ref’d); De Los Santos v. State, 219 S.W.3d 

71, 80–81 (Tex. App.—San Antonio 2006, no pet.); Fox v. State, 175 S.W.3d 475, 

481 (Tex. App.—Texarkana 2005, pet. ref’d); Woods v. State, 14 S.W.3d 445, 451 

(Tex. App.—Fort Worth 2000, no pet.).

Texas Rule of Evidence 601(a)(2) provides that a child “whom the court 

examines and finds lacks sufficient intellect to testify concerning the matters in 

issue” is incompetent to testify. TEX. R. EVID. 601(a)(2). Under this rule, the party 

seeking to exclude the witness from testifying must raise the issue of the witness’s

competency and shoulders the burden of establishing incompetency. Gilley v. State, 

418 S.W.3d 114, 120 (Tex. Crim. App. 2014). Under Rule 104(a) of the Texas Rules 

of Evidence, the competency of a child witness is a preliminary question for the trial 

court to determine, and the trial court is not bound by the Rules of Evidence in 

making that determination. Id. at 121. When the competency of a child witness is 

challenged, the trial court must assure itself that the child has (1) the ability to 

intelligently observe the events in question at the time of the occurrence, (2) the 

capacity to recollect the events, and (3) the capacity to narrate the events. Watson v. 

State, 596 S.W.2d 867, 870 (Tex. Crim. App. 1980). The third element, involving 

the capacity to narrate, requires that the witness is able to understand the questions 

asked, frame intelligent answers to those questions, and understand the moral 

responsibility to tell the truth. Id. at 870.

Prior to receiving testimony at trial, the trial court asked K.C. a series of 

questions to determine her competency to testify. The trial court asked K.C. if she 

knew where she was, and she initially replied, “Home.” After determining that she 

would be more comfortable answering the questions in Spanish, the trial court 

continued its questioning through an interpreter. The trial court again asked if she 

knew where she was or what the building was called, to which she replied, “It’s a 

court.” The trial court then asked, “[I]f I told you that the robe I had on was yellow, 
5

is that the truth or a lie?” K.C. replied, “A lie.” The trial court asked, “Are you 

supposed to tell the truth or are you supposed to tell lies?” K.C. replied, “The truth.” 

K.C. was then asked, “And why is it important to tell the truth?” K.C. answered,

“Because if not, somebody’s going to get mad at you.” She further answered that it 

was “good” to tell the truth and “bad” to tell lies.

The court then asked K.C. several more questions, such as the following: if 

she knew what city she lived in, to which she replied, “I don’t know”; if she knew 

what city her school was in, to which she replied, “No”; if she knew what state she 

was in, to which she replied, “I don’t remember”; and if she knew the day of the 

week, to which she replied, “No.” The trial court further asked her if there were 

sometimes things she could not remember, to which she replied, “No.” K.C. was 

then asked, “If we asked you a question and you didn’t know the answer, what would 

your answer be?” K.C. answered, “That I don’t know.” At the conclusion of the 

preliminary examination, Appellant’s trial counsel argued that K.C. was 

“obviously[] not competent” because “[s]he has no comprehension of time or space 

or place.” The trial court overruled Appellant’s objection and permitted K.C. to 

testify at trial.

On direct examination during the trial, K.C. was asked if she remembered 

going to the hospital, to which she replied, “No.” The prosecutor then asked K.C. if 

K.C. remembered talking to her about what happened. K.C. replied, “Yes.” K.C. 

was asked, “Do you remember who touched you?” K.C. replied, “No.” With the 

assistance of some “anatomical dolls,” K.C. subsequently testified that someone had 

“touched” her and that it was a “bad touch.” She testified that someone had touched 

her vagina under her clothes and that it happened at her friend’s house. K.C. 

subsequently identified Appellant as the person that had removed her underwear and 

penetrated her vagina.
6

K.C.’s responses to the trial court’s qualification questions, as well as 

questions from counsel regarding her ability to recollect and narrate the events, were 

at times equivocal regarding her competency to testify. As noted above, some of the 

initial confusion with K.C.’s responses was attributable to a language translation 

issue. Furthermore, we must review the child’s entire testimony, as well as the 

child’s responses to qualification questions, to determine whether the trial court’s 

ruling constituted an abuse of discretion. Davis, 268 S.W.3d at 699. Our review of 

the entirety of K.C.’s testimony demonstrates that she was able to observe the events 

of her encounter with Appellant, recollect those events, and then narrate them at trial. 

See Watson, 596 S.W.2d at 870. Considering her testimony as a whole, we cannot 

conclude that the trial court abused its discretion in determining that K.C. was 

competent to testify. Appellant’s first issue is overruled.

In Appellant’s second issue, he asserts that the trial court erred in permitting 

multiple outcry witnesses to testify at trial. The State initially called the victim’s 

mother, C.G., as an outcry witness. Afterwards, the State called Paschall, a forensic 

interviewer, as an additional outcry witness. The prosecutor asserted that Paschall 

was also a proper outcry witness because K.C. told her additional details that she did 

not tell C.G. After conducting a hearing outside the presence of the jury, the trial 

court ruled that Paschall could also testify as an outcry witness. On appeal, 

Appellant challenges the trial court’s ruling permitting Paschall to testify as an 

additional outcry witness.

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

of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)

(op. on reh’g). We will reverse the trial court’s decision only if it acted arbitrarily, 

unreasonably, or without reference to any guiding rules or principles. Id. at 380.

We will uphold the trial court’s ruling if it is within the zone of reasonable 

disagreement. Id. at 391. A trial court has “broad discretion” to determine the 
7

admissibility of outcry evidence, and we will not disturb its determination as to the 

proper outcry witness absent a showing in the record that the trial court clearly 

abused its discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); 

Smith v. State, 131 S.W.3d 928, 931 (Tex. App.—Eastland 2004, pet. ref’d).

Article 38.072 of the Texas Code of Criminal Procedure creates a hearsay 

exception for a child complainant’s out-of-court “statements” that “describe . . . the 

alleged offense,” so long as those statements “were made to the first [adult] person 

. . . to whom the child . . . made a statement about the offense.” TEX. CODE CRIM.

PROC. ANN. art. 38.072, § 2(a) (West Supp. 2015); see Bays v. State, 396 S.W.3d 

580, 585 (Tex. Crim. App. 2013). Hearsay testimony from more than one outcry 

witness may be admissible under Article 38.072 if the witnesses testify about 

different events. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011) (citing

Broderick v. State, 35 S.W.3d 67, 73–74 (Tex. App.—Texarkana 2000, pet. ref’d)). 

Thus, admissible outcry witness testimony is event-specific, not person-specific. 

Eldred v. State, 431 S.W.3d 177, 181–82 (Tex.App.–Texarkana 2014, pet. filed); 

Polk v. State, 367 S.W.3d 449, 453 (Tex.App.–Houston [14th Dist.] 2012, pet. ref’d). 

Because designation of the proper outcry witness is event-specific, when a child is 

victim to more than one instance of sexual assault, it is possible to have more than 

one proper outcry witness, so long as the outcries concerned different events and not 

simply repetition of the same event told to different individuals. Robinett v. State, 

383 S.W.3d 758, 762 (Tex. App.—Amarillo 2012, no pet.); Brown v. State, 189 

S.W.3d 382, 387 (Tex. App.—Texarkana 2006, pet. ref’d).

Appellant’s second issue centers on whether K.C.’s outcry to Paschall 

concerned a different offense than K.C.’s outcry to C.G. We note that Appellant 

was tried for two offenses. The first count in the indictment charged him with 

aggravated sexual assault of a child, a first-degree felony, by alleging that he 

intentionally or knowingly penetrated the sexual organ of K.C. with either a belt or 
8

an unknown object. See TEX. PEN. CODE ANN. § 22.021(a)(1)(B)(i), (e) (West Supp. 

2015). The second count of the indictment charged Appellant with indecency with 

a child by contact, a second-degree felony, by touching the sexual organ of K.C. See

id. § 21.11(a)(1), (c)(1), (d) (West 2011).

K.C. first told C.G. that Appellant pulled her underwear down and touched 

her vagina, but made no mention of penetration. During the subsequent interview 

with Paschall, K.C. told her that Appellant contacted her vaginal area with his belt, 

which “went between the labia of her female sexual organ.” In Divine v. State, the 

child victim first denied that digital penetration had occurred when making her initial 

outcry statement to her grandmother. 122 S.W.3d 414, 420 (Tex. App.—Texarkana 

2003, pet. ref’d). However, she later told a forensic interviewer that digital 

penetration had occurred. Id. The Texarkana Court of Appeals held that the trial 

court did not abuse its discretion in allowing both outcry witnesses to testify because 

the outcries concerned different matters. Id. The court reasoned that, “[a]t the 

simplest level, the child did not make an outcry about penetration to the 

grandmother, but did make such an outcry to the interviewer.” Id.

The facts in Divine are analogous to the facts in this appeal. K.C.’s initial 

outcry to C.G. did not address the matter of penetration, while her subsequent outcry 

to Paschall did address penetration. Penetration was an essential element of the 

higher level offense of aggravated sexual assault of a child as alleged in the first 

count of the indictment. Thus, Paschall was the first person over the age of eighteen 

that K.C. told about the offense as alleged in the first count of the indictment, which 

was also the sole offense for which Appellant was convicted. See Turner v. State, 

924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref’d) (citing Garcia, 792 

S.W.2d at 91–92) (the outcry witness must be the first person to whom the child 

makes a statement that, in some discernible manner, describes the alleged offense). 
9

Accordingly, the trial court did not abuse its discretion when it permitted Paschall to 

testify as an outcry witness. Appellant’s second issue is overruled.

In Appellant’s third issue, he asserts that the trial court erred in denying his

objection to improper jury argument by the prosecutor. He contends that the 

prosecutor’s argument constituted an improper attempt to inject the prosecutor’s 

personal opinion about the veracity of the child victim. See Menefee v. State, 614 

S.W.2d 167, 168 (Tex. Crim. App. 1981). A trial court’s ruling on an objection to 

improper jury argument is reviewed for an abuse of discretion. See Garcia v. State, 

126 S.W.3d 921, 924 (Tex. Crim. App. 2004).

The prosecutor made the following argument to the jury:

And, ladies and gentlemen, I submit to you, he also calls into 

question my own reputation. From the very beginning he said he’d 

have you believe that all this was a crime. Ladies and gentlemen, we 

would have you believe it was a crime because it is.

I do not stand here today after all that I’ve done, all the schooling 

I’ve gone through because I’m part of a conspiracy. Ladies and 

gentlemen, I stand here today because [K.C.] is telling the truth.

Appellant’s trial counsel objected that this statement was “[p]rosecutor opinion, not 

admissible.” The trial court overruled the objection. Trial counsel then refined his 

objection by asserting that the prosecutor was “stating her own opinion.” The 

prosecutor continued as follows: “I’m responding to what he’s accusing all of us of. 

He’s accusing us of making up a conspiracy. Accusing these witnesses that they 

would do that. And you know why? Because there’s too much consistency to look 

away. Too much consistency.” The prosecutor then gave additional arguments 

detailing why the jury should believe K.C.’s version of the events, including arguing,

“[H]ow does a five-year-old child even conceive of this? Because it happened to 

her. Because she can’t forget it.”
10

“It is the duty of trial counsel to confine their arguments to the record; 

reference to facts that are neither in evidence nor inferable from the evidence is 

therefore improper.” Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App.

1973) (quoting 56 TEX. JUR. 2d Trial § 271, at 613). “Thus, proper jury argument 

generally falls within one of four general areas: (1) summation of the evidence; (2) 

reasonable deduction from the evidence; (3) answer to argument of opposing 

counsel; and (4) plea for law enforcement.” Brown v. State, 270 S.W.3d 564, 570 

(Tex. Crim. App. 2008) (citing Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App.

1999); Alejandro, 493 S.W.2d at 231). “The arguments that go beyond these areas 

too often place before the jury unsworn, and most times believable, testimony of the 

attorney.” Alejandro, 493 S.W.2d at 232. We examine allegedly improper argument 

in light of the facts adduced at trial and in the context of the entire argument. 

McGee v. State, 774 S.W.2d 229, 239 (Tex. Crim. App. 1989).

It is ordinarily improper for a prosecutor, during his argument, to vouch for 

the credibility of a witness. Chapman v. State, 503 S.W.2d 237, 238 (Tex. Crim.

App. 1974). However, if the argument in question was invited by argument of 

defense counsel and was in reply thereto, no reversible error is shown. Id. In 

Chapman, the Court of Criminal Appeals held that a prosecutor’s statement during 

closing argument—that “I would ask you to believe that I would not intentionally or 

knowingly be a party - - - to submitting perjured evidence before you”—was invited 

when defense counsel asserted that the prosecution’s narrative was fabricated. Id.

In this case, Appellant acknowledges in his brief that trial counsel’s strategy 

“was to discredit the child witness and to call into question the very logic of the 

State’s case.” In his opening statement at trial, trial counsel said:

Ladies and gentlemen, what you hear in this case will strike you 

as being illogical, nonsensical, improbable, and at times professionally 

constructed. What you will hear in this case will make you understand 
11

that what is being sold to you as a crime is not just improbable, not just 

illogical, but impossible. And, therefore, you will understand that it is 

not true.

(Emphasis added). Trial counsel asked K.C. on cross-examination, “And all the 

people who have interviewed you have helped you remember the things you didn’t 

remember?” In closing argument, trial counsel asserted that Detective Aaron 

Martinez, who took C.G.’s offense report, improperly influenced Paschall before she 

interviewed K.C. Appellant’s trial counsel stated:

[W]here does he come at you with this cornucopia, this plethora of 

evidence? Does he go to the house? Does he get a layout of the house? 

Does he take pictures? Does he talk to neighbors? Does he do 

anything? No.

Not until February 9th of 2012 when he sends a copy of his 

offense report to the forensic examiner. When his mind is already made 

up and he’s decided: Well, now I have to put words in their mouths. I 

have to convince them as well.

On that same day that he sends his offense report to Carrie 

Paschall, he calls up Cook’s and he says, I have a little girl that I need 

to get examined. Tells them what’s going on.

Appellant’s trial counsel also implied that Paschall led K.C. toward 

Detective Martinez’s allegedly fabricated narrative during her interview:

Q: All right. And now let me ask you, technique-wise, if -- if a 

child on -- when initially asked says -- for example, let’s take a 

hypothetical conversation. If a child says, no, I wasn’t touched, you 

don’t end the conversation there, do you?

A: Depends on what the facts are up to that point.

Q: Okay. Now, there is -- there is -- there is a body of -- of 

expertise that suggests that an interviewer should not have a report and 

not necessarily know about, quote, alleged facts when conducting the 

interview, less the interview [sic] try to lead the child. Are you aware 

of that?
12

The record makes it clear that Appellant’s trial counsel, on multiple occasions,

asserted or implied that the State’s narrative was, in his own words, “at times

professionally constructed.”

The Amarillo Court of Appeals addressed a similar situation in Lange v. State,

57 S.W.3d 458 (Tex. App.—Amarillo 2001, pet. ref’d). The prosecutor in Lange

argued in closing argument that he “took an oath and I resent his allusions that I’m 

trying to do a perversion of justice . . . in coaching that witness.” 57 S.W.3d at 468. 

In response to the defense counsel’s objection on the ground of “personal opinion,” 

the prosecutor asserted that the argument was invited based upon his name being 

included on a list of people that the victim had to fool if she was lying. Id. The court 

noted that defense counsel had attempted to attack the victim’s credibility by 

showing inconsistencies in her story and suggesting that she had been manipulated 

by others into bringing the allegations. Id. at 469. The court further noted that the 

child victim was specifically questioned during cross-examination as to each person 

she had spoken to about the alleged incidents, including the prosecutors. Id. The 

court concluded that the prosecutor’s argument had been invited based upon the 

manner in which defense counsel had attacked the victim’s credibility. Id.

Trial counsel’s attack on K.C.’s credibility and his suggestion that she had 

been manipulated is very similar to the situation in Lange. In this regard, trial 

counsel, during his cross-examination of K.C., made reference to the fact that K.C. 

had visited with the prosecutor in preparation for trial. Accordingly, the prosecutor’s 

argument vouching for K.C.’s veracity was invited, as was the case in Lange. 

However, the prosecutor went a step further than the prosecutor in Lange when she 

stated that K.C. “is telling the truth.” See Lange, 57 S.W.3d at 469 (noting that “[t]he 

prosecutor never directly stated that he believed the complainant”). We conclude 

that it was improper for the prosecutor to bolster K.C.’s testimony by injecting into 
13

the argument her personal opinion about K.C.’s honesty and truthfulness. See 

Menefee, 614 S.W.2d at 168.

Even if an argument is improper, it will not constitute grounds for reversal 

unless the statements to the jury injected new and harmful facts into the case or were 

so extreme and manifestly improper that they deprived the defendant of a fair and 

impartial trial. Brown, 270 S.W.3d at 573 n.3. “In determining whether jury 

argument is extreme or manifestly improper, we look at the entire record of final 

arguments to determine if there was a willful and calculated effort on the part of the 

State to deprive appellant of a fair and impartial trial.” Id. (quoting Cantu v. State, 

939 S.W.2d 627, 633 (Tex. Crim. App. 1997)) (internal quotation mark omitted).

“[I]t ‘is not enough that the prosecutors’ remarks were undesirable or even 

universally condemned.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) 

(quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983)). “The

relevant question is whether the prosecutors’ comments ‘so infected the trial with 

unfairness as to make the resulting conviction a denial of due process.’” Id. (quoting 

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).

In Flores v. State, the Corpus Christi Court of Appeals addressed a similar 

situation when the prosecutor argued, “This is a little girl. She got up here and told 

the truth.” 778 S.W.2d 526, 528 (Tex. App.—Corpus Christi 1989, no pet.). The 

court concluded that the argument was not so extreme as to require reversal given 

the context in which the credibility of the complainant was being attacked. Id. The 

same rationale applies to the facts in this case given trial counsel’s attack on K.C.’s 

credibility and his assertion that her allegation was “professionally constructed.” 

The isolated comment was made within a broader response addressing the 

consistency of K.C.’s allegations and the difficulties of a young child in being able 

to remember an event and testify about it afterward. Moreover, the thought that the 
14

prosecutor believed that K.C. was telling the truth was not so extreme as to result in 

a denial of due process. Accordingly, Appellant’s third issue is overruled. 

This Court’s Ruling

We affirm the judgment of the trial court.

JOHN M. BAILEY 

JUSTICE

December 31, 2015

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.