### IN THE TENTH COURT OF APPEALS
No. 10
- 10
- 00393
- CR
RICHARD CASAREZ LOPE Z , Appellant v. THE STATE OF TEXAS , Appellee

From the 361st District Court Brazos County, Texas Trial Court No. 09
- 04380
- CRF
- 361

MEMORANDUM OPINION

A jury convicted Richard Casarez Lopez of the offense of aggravated sexual assault of a child and assessed his punishment at thirty

- five years ’ imprisonment and a $5 , 000 fine. Lopez raises two issues on appeal

. We will affirm

. Sufficiency of the Evidence We begin with Lopez’s second issue, which contends that the evidence is insufficient to support his conviction. The Court of Criminal Appeals has expressed our standard of review of a sufficiency issue as follows:Lopez v. State Page 2 In determining whether the evidence is le gally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have fo und the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318

- 19 (1979); Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “ familiar standard gives full play to the responsibility of the trier of f act fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. ” Jackson , 443 U.S. at 319. “ Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is suffic ient to support the conviction.” Hooper , 214 S.W.3d at 13.
Lucio v. State , 351 S.W.3d 87 8, 894 (Tex. Crim. App. 2011). The Court of Criminal Appeals has also explained that o ur review of “ all of the
evidence ” includes evidence that was properly and improperly admitted. Conner v.
State , 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting inferences, we must presume that the factfinder resolved th e conflicts in favor of the prosecution and therefore defer to that determination. Jackson , 443 U.S. at 326, 99 S. Ct.

at 27 93 . Further more , direct and circumstantial evidence are treated equally:

“ Circumstantial evidence is as probative as direct eviden ce in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. ” Hooper , 214 S.W.3d at 13. Finally , it is well established that t he factfinder is entitled to judge the credibility of witnesses and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State , 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
When P.B. was age nine, her stepfather invited Lopez to stay as a guest in their home. P.B. shared a room with her brother, and Lopez stayed in another bedroom. P.B. testified that one night after she and her brother went to bed , Lopez came into herLopez v. State Page 3

room. Lopez woke her up and asked if she w anted to go watch television with him. Lopez then took her in the bedroom where he was staying and told her to lie down on the bed. P.B. stated that Lopez told her to take off her pants. She complied because she was afraid. P.B. testified that Lopez pu t his mouth on her “front part.” P.B. further testified that Lopez used h is tongue on her private part. P.B. said that Lopez told her to go back to her room and not to tell anyone. P.B. went into her room so that Lopez would think she was going to sleep . After Lopez closed his bedroom door, P.B. went and told her mother what happened.
S ubs ection 22.021 (a) of the Penal Code provides that: (a) a person commits an offense: (1) if the person:

... (B) intentionally or knowingly:

... (iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
T EX
. P ENAL C ODE A NN
. § 22.0 2 1 (a) (West Supp. 2011). Lopez acknowledges that P.B. testified to facts supporting each element of the of fense, but he argues that the record as a whole conclusively e stablishes a reasonable doubt. Lopez argues that inconsistencies in the testimony of P.B.’s mother and step

father create reasonable doubt. Anthony Valdez testified that Lopez had spent a week
in their home before the incident, and Christene Valdez testified that Lopez had spent only one night in the h ome. Anthony testified that there was only one bed in P.B’s room and that the children took turns sleep ing in the bed and on a pallet o n the floor. Christene testified that there were two twin beds in the room. Anthony stated that heLopez v. State Page 4

and Lopez returned to the house around 3:00 or 4:00 in the afternoon and that they sat outside drinking beer. Christene said that the men returned home around 8:00 p.m. and that they stayed in the house watching football. The jury is entitled to judge the credibility of wi tnesses and can choose to believe all, some, or none of the testimony presented by the parties. Chambers, 805 S.W.2d at 461. Lopez also argues that there is no physical evidence connecting him to the
offense and that there is no evidence other than P.B.’s allegations. A conviction under
section 22.021 is supportable on the uncorroborated testimony of the victim of the
sexual offense. See T EX
. C ODE C RIM
. P RO C
. A NN . art. 38.07 (West Supp. 2011) ; Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.

— Waco 2006, pe t. ref’d); Tear v. State , 74 S.W.3d 555, 560 (Tex. App.

— Dallas 2002, pet. ref’d). After reviewing all of the evidence , we find that a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. We overrule the sec ond issue. Admission of Opinion Testimony Lopez complains in his first issue that the trial court erred in allowing the opinion testimony of T’Shaina Ev eritt. We review a trial court’ s decision to admit or
exclude evidence for an abuse of discretion. McDonald v. State , 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “ Under an abuse of discretion standard, an appellate court should not disturb the trial court's decision if the ruling was within the z one of reasonable disagreement.” Bigon v. State , 252 S.W .3d 360, 367 (Tex. Crim. App. 2008). Everitt is a licensed marriage and family therapist. She testified about the behavioral characteristics exhibited by victims of sexual abuse. These symptomsLopez v. State Page 5

include hypervigila nce, depression, nightmares, low self

- est eem, inappropriate peer relationships, guilt, and shame. Everitt stated that she treated P.B. for nightmares, sleeping trouble, and irrational fears. She said that P.B. also showed signs of low self

esteem, relationship difficulties, and shame. Everitt further testified that P.B. had symptoms consistent with sexual abuse. Lopez contends that Everitt’s testimony was inadmissible under Rule of
Evidence 702 as a direct comment on P.B.’s truthfulness. An expert witness may not offer a direct opinion on the truthfulness of a child complainant ’ s allegations. Schutz v.
State , 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). Expert testimony that a child exhibits behavioral characteristics that have been empirically shown to be common among children who have been sexually abused is relevant and admissible under Rule 702.
Cohn v. State , 849 S.W.2d 817, 819 (Tex. Crim. App. 1993); Chavez v. State , 324 S.W.3d 785, 78 9 (Tex. App.

— Eastland 2010, no pet.); Gonzales v. State , 4 S.W.3d 406, 417 (Tex. App.

— Waco 1999, no pet.). Such testimony is not objectionable on the ground that it bolsters the credibility of the child complainant. Cohn , 849 S.W.2d at 820

- 21; Chavez , 32 4
S.W.3d at 789. Everitt did not testify that she believed sexual abuse occurred, and she did not provide a direct opinion that P.B. was telling the truth. Everitt’s testimony that
P.B. showed characteristics consistent with sexual abuse was not a commen t on her
truthfulness. Lopez also contends that Everitt’s testimony should have been excluded under
Rule of Evidence 403 because the probative value of the testimony was outweighed by the danger of unfair prejudic e. A trial court, when undertaking a Rule 403 analysis,Lopez v. State Page 6

must balance (1) the inherent probative force of the proffered item of evidence

— that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation

— along with (2) the proponent’ s need for tha t evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State , 210 S.W.3d 637, 641

- 42 (Tex. Crim. App. 2006). Considering all of the factors, we do not find that the trial court abused its discretion in finding that the probative value of the evidence was outweighed by th e danger of unfair p rejudice.
The trial court did not abuse it s discretion in admitting Everitt’s testimony. We
overrule the first issue. Having overruled both issues, we aff irm the trial court’s judgment.

REX DAVIS Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion d elivered and filed June 6 , 2012 Do not publish [CRPM ]