In the Matter of F.E.C.--Appeal from 386th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-05-00830-CV
IN THE MATTER OF F.E.C.

From the 386th Judicial District Court, Bexar County, Texas

Trial Court No. 2005-JUV-01535

Honorable Laura Parker, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: September 13, 2006

AFFIRMED

This is an appeal from a juvenile adjudication and order of disposition. A jury found F.E.C., a juvenile, engaged in delinquent conduct by committing the offense of aggravated sexual assault. The trial court assessed punishment of commitment to the Texas Youth Commission ("TYC") for thirty-five years. We affirm.

COMPETENT WITNESS

In his first issue, F.E.C. argues the trial court erred by failing to determine that the child complainant was competent to testify and "understood the nature of the oath to tell the truth and her duty and obligation to tell the truth." However, to preserve a claim of error for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1. Here, F.E.C.'s counsel asked that the "witness be advised of the law of perjury," which the trial court did, but counsel never objected to the competency of the witness. An appellant may not raise the issue of competency of the child for the first time on appeal. Rich v. State, 823 S.W.2d 420, 421 (Tex. App.--Fort Worth 1992, pet. ref'd); Lujan v. State, 626 S.W.2d 854, 860 (Tex. App.--San Antonio 1981, pet. ref'd). Because F.E.C. did not object to the competency of the witness, he has not preserved his complaint for appellate review.

HEARSAY

In his second issue, F.E.C. contends the trial court abused its discretion when it admitted hearsay evidence in violation of article 38.072 of the Texas Code of Criminal Procedure and rule 801(e)(1)(B) of the Texas Rules of Evidence. F.E.C. claims that the testimony of complainant's friend, Brandi Fernandez, concerning a statement made to her by complainant about the alleged sexual assault, was inadmissible hearsay and improperly bolstered the State's case.

A prior consistent statement is not hearsay if it is "consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." Tex. R. Evid. 801(e)(1)(B).

During cross-examination, F.E.C.'s counsel questioned complainant about whether complainant's mother and complainant's aunt, who is F.E.C.'s mother, had spoken in three years, whether they get along, and whether there was a property dispute between the two sisters. He asked complainant's sister, Veronica Zuniga, about complainant's mother's motive and whether complainant's mother would "put [complainant] up to say something against [F.E.C.] so that she could get the house." F.E.C.'s counsel continued, "[Y]ou still think that there's no way that [complainant] could have made this up." He asked complainant, "You're not making this up to get back at [F.E.C.]?," and complainant answered, "No." Also, F.E.C.'s counsel asked complainant whether she was changing her story, to which she responded, "No." After a review of the evidence, we believe F.E.C.'s counsel suggested complainant's testimony was fabricated or the subject of improper influence. Accordingly, Brandi's testimony concerning the alleged sexual assault was admissible to rebut F.E.C.'s charges of recent fabrication and improper motive.

Further, Brandi's testimony did not constitute improper bolstering. Improper bolstering occurs "when one item of evidence is improperly used by a party to add credence or weight to some earlier unimpeached piece of evidence offered by the same party." Guerra v. State, 771 S.W.2d 453, 474 (Tex. Crim. App. 1988). Here, because F.E.C. attempted to impeach complainant's testimony during his cross-examination, the State did not impermissibly use Brandi's testimony to bolster the complainant's testimony. See Bolden v. State, 967 S.W.2d 895, 898-99 (Tex. App.--Fort Worth 1998, pet. ref'd) (noting that admission of prior consistent statement was not bolstering because it was offered to rebut appellant's charge of improper motive); see also Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993) (holding that "evidence that corroborates another witness' story..., in the sense that it has an incrementally further tendency to establish a fact of consequence, should not be considered bolstering").

EXPERT TESTIMONY

In his last issue, F.E.C. argues that the trial court abused its discretion by allowing nurse Shirley Menart to testify to matters in areas that she is not qualified. Objections to testimony, including the qualifications of experts and the reliability of their theories and methodology, must be raised at the trial court level, and failure to do so waives any error on these grounds. Tex. R. App. P. 33.1(a); Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002). Here, as F.E.C. concedes, trial counsel did not object to Ms. Menart's testimony or qualifications; thus, he is precluded from challenging her qualifications on appeal.

CONCLUSION

We affirm the trial court's judgment.

Sandee Bryan Marion, Justice