Baltazar Fuentes v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00248-CR
________________

BALTAZAR FUENTES, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 22-05-05624-CR
________________________________________________________________________

MEMORANDUM OPINION

Appellant Baltazar Fuentes (“Fuentes” or “Appellant”) appeals his conviction

for aggravated sexual assault of a child, a first-degree felony. See Tex. Penal Code

Ann. § 22.021(a)(2)(B). Fuentes complains the trial court erred in permitting expert

testimony that allegedly bolstered the complaining witness’s testimony and invaded

the province of the jury by testifying that the complaining witness was truthful.

Fuentes further complains that the trial court erred by refusing to grant a directed

1
verdict on the matter of penetration, since he claimed the evidence negated it. We

affirm the trial court’s judgment.

BACKGROUND

A grand jury indicted Fuentes for the offense of aggravated sexual assault of

a child, alleging Fuentes “did then and there intentionally or knowingly cause the

Defendant’s sexual organ to contact or penetrate the sexual organ of A.A., a child

who was then and there younger than 14 years of age[.]” See id.

The trial was to the jury for both guilt and punishment. After the jury

convicted Fuentes of the offense charged and assessed punishment at seventy-five

years, the trial court sentenced Fuentes to seventy-five years in the Texas

Department of Criminal Justice. We summarize the relevant evidence below.

Officer Joe McGrew’s Testimony

After outlining his professional and educational history and his then current

duties in the Conroe Police Department, Officer McGrew (“McGrew”) explained

that from 2017 to 2022, he was a detective in the juvenile division. In the juvenile

division, McGrew “would investigate cases that had any juvenile as a suspect or as

a victim[,]” including sexual assaults of children. McGrew estimated that he had

investigated “[a]bout 500[]” cases in his capacity as a detective in the juvenile

division. He described the process of handling a juvenile case, recalling that the

initial step is scheduling the victim for a forensic interview. According to McGrew,

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a forensic interview is “an interview with a child victim . . . in such a way as to try

to minimize any secondary victimization and get the child’s story without leading

them to say any particular thing.” McGrew also requested a SANE examination,1

but it was not conducted because Father refused it. McGrew agreed that a SANE

examination is extensive and invasive. McGrew further noted that at the time they

executed the search warrant, “[i]t would have been weeks or months[]” since the

previous incident of abuse against Ava,2 and McGrew therefore would have

expected that any biological evidence found on the sheets in the primary bedroom

would have been traceable to Fuentes and his wife, Mother, rather than to Fuentes

and Ava. Ava was, in McGrew’s estimate, about twelve to fourteen years old at that

time. 3 Following his usual procedure in such cases, McGrew scheduled and observed

Ava’s forensic interview, during which Ava disclosed details of an offense against

her and identified Fuentes as the offender. McGrew then spoke to Father,

subpoenaed Ava’s school records, and obtained a search warrant for a house

occupied by Fuentes, Mother, and Ava. While crime scene investigators were

1
SANE stands for sexual assault nurse examination.
2
We use a pseudonym to refer to the complainant, a minor, and we refer to
her family members other than Fuentes by their relationship to the complainant to
protect her privacy. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the
right to be treated with fairness and with respect for the victim’s dignity and privacy
throughout the criminal justice process”).
3
Ava’s birth certificate, admitted as State’s Exhibit 4, shows she was twelve
when McGrew began his investigation.
3
executing the search warrant, they located a spiral notebook containing Ava’s

journal entries. Excerpts of the notebook were admitted as State’s Exhibits 21

through 25 and are addressed below.

Since Fuentes was at the house while officers were present, McGrew

interviewed Fuentes, who denied Ava’s accusations, but stated that he had known of

Ava’s allegations for “two or three years.” Fuentes acknowledged that he gave Ava

a massage, and claimed that Ava “had solicited him to have sex, specifically saying,

‘Stick it in.’ And he replied, ‘No, that would hurt you.’” McGrew found Fuentes’s

statement odd because he did not “believe that would be typical of the response of

somebody that was presented with a child asking them for sex.”

Father’s Testimony

Father testified that he and Mother were never formally married, they were

together for “many years[]” before separating when Ava was about four or five years

old. Father described the custody arrangement between himself and Mother as seeing

Ava about once a month during the school year and the entire summer when school

was out of session.

After Father graduated from college with a degree in engineering, he worked

in Lubbock for a time before moving back to the Houston area so that Ava could

live with him instead of with Mother and Fuentes.

4
Father recalled that Ava’s disclosure to him occurred at the end of a weekend

visitation in early October 2021. Father “asked [Ava] to gather her things so [Father]

could take her back to her mom’s place[,]” and while they were in the car, Ava began

“bawling, crying[,]” and told him “that her stepfather had touched her.” Based on

what Ava told Father that day, Father did not return Ava to Mother’s home but

instead called the police and later took Ava to a forensic interview. Father explained

that he declined the SANE examination because he did not “want someone else

touching her[,]” despite the difference between a SANE examination and sexual

assault.

Julie Pilgrim’s Testimony

Julie Pilgrim (“Pilgrim”), a forensic interviewer at Children’s Safe Harbor, a

children’s advocacy center in Conroe, described the purpose and procedure for

conducting a forensic interview. Specifically, Pilgrim explained that a forensic

interview consists of six stages and is designed to reduce the number of times a child

must relate the abuse. In Pilgrim’s words, “[i]t decreases suggestibility, and it

provides just a neutral environment for the child and their family.” Pilgrim also

testified about her education, training, and experience, and elaborated on the

individual stages of a forensic interview.

In the initial stage of a forensic interview, preparation, Pilgrim ensures that

the room is ready, recording is operable, meets with the team to discuss the case, and

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reads the report, if one is available. The next stage, rapport building, includes getting

to know the child and “establishing comfort[]” by “asking things they like to do for

fun[.]” Speaking with the child in this way, enables Pilgrim to assess the child’s

developmental level and determine “the types of questions [the child is] capable of

answering.” She then does “event narrative practice” where she shows the child how

she might ask something later.

The next stage of the interview is called rules and truth/lie oath. This stage

includes letting the child know that she should not guess at the answer to a question

and that she should correct the interviewer if necessary. Pilgrim also has the child

explain what truth and lie mean to them and goes over examples of truth and lies.

Pilgrim then explains the consequences of lying and has the child promise to tell her

the truth.

Introducing the topic of concern is the next interview stage. In this stage,

Pilgrim asks the child what she came to talk about, and if the child discloses abuse,

Pilgrim proceeds to the next stage: detail gathering. During the detail-gathering

stage, Pilgrim asks “very open-ended questions[]” and obtains additional detail by

asking “who, what, when, where[]” questions, such as “where were you when that

happened.”

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Before the final interview section, closure, Pilgrim leaves the room to ask

observers whether she should ask additional questions. She then concludes the

interview and escorts the child back to the front area of the facility.

When asked about disclosure, Pilgrim replied that since each child has a

different personality and is in different circumstances, the disclosure process is

different for each child. Despite these differences, however, Pilgrim identified five

stages of disclosure: denial, tentative, active, recant, and reaffirmation. Pilgrim

further explained a delayed disclosure as “where a child may wait years and years

before they tell someone they’ve been a victim of abuse.” She attributed such delays

to any number of causes, including threats, fear, or embarrassment. In Pilgrim’s

experience, children eventually disclose to make the abuse stop or to prevent abuse

of a potential future victim, such as a sibling or cousin. She also noted that it is

common for the victim’s family to disbelieve the victim’s abuse accusation, since

the family members think the child may be confused or cannot “imagine that person

doing those things that they’ve heard[.]”

Pilgrim recalled that she conducted Ava’s forensic interview at Children’s

Safe Harbor in October 2021. During the interview, Ava established that she knew

the difference between the truth and a lie and promised to tell the truth. Ava

described to Pilgrim an incident when she and Fuentes were in Mother’s bedroom.

Both Ava and Fuentes were nude, and Ava was lying on the bed “on her back[.]”

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Ava reported Fuentes “was standing up basically next to the bed in front of her[,]”

with Ava’s “legs . . . resting on his shoulders[]” and Fuentes’s hands on Ava’s thighs.

Ava told Pilgrim that Fuentes “had his penis on her vagina and was moving back

and forth kind of - - she used the word gliding as well.” Ava stated that Fuentes was

gliding “in between both of the lips” of her vagina. Ava then stated that Fuentes “got

his hands off of me and grabbed his penis and tried to insert it.” Ava recalled that

she “could feel the tip trying to go in[,]” and stated that “[i]t hurt a lot.” Ava then

used her legs to push Fuentes off her. Fuentes hit the dresser but then repositioned

Ava’s legs on his shoulders and continued “doing the same thing back and forward.

And then after that he just stopped.” Ava then took her clothes into the bathroom,

dressed, and waited in the bathroom until she heard Mother.

Ava’s Testimony

Ava testified that she was fourteen years old at the time of trial. Her half-

brother and half-sister were then seventeen and six years old, respectively. Ava

testified that she liked mathematics, enjoyed playing basketball, and hoped to

become a doctor or a lawyer. Although she had a boyfriend in seventh grade, she

was not sexually active with him.

Ava recalled meeting Fuentes when she was five years old and stated that they

would do things as a family, such as shopping, eating meals, and watching television.

Although Ava considered things normal at first, when she was about eight, she

8
“noticed a difference in how [Fuentes] would treat [her].” In particular, Ava believed

that Fuentes began to treat her more harshly than her siblings, and she testified that

Fuentes’s behavior became increasingly sexual toward her.

According to Ava, Fuentes “started being, like, kind of, like, friendly, like

touchy. And it started off with, like, kissing.” At one point, when Ava was about

eight, Fuentes “forced [her] towards him[,]” asked for a kiss, and kissed Ava on the

mouth, which she described as “[a]wkward.” Other times, Fuentes “smacked and

grabbed [Ava’s] behind[]” as she walked past him and massaged her back. Ava

described his massages as “just, like, massaging[]” at first, but recalled that Fuentes

later “put his hand in [my] shirt, like, from the side[]” and rubbed her breast.

When Ava was in about fourth grade and Mother and Ava’s siblings were not

at home, Fuentes “came in from outside and he asked [Ava] to pull down [her]

pants.” She did so, and Fuentes then lowered Ava’s underwear and rubbed her vagina

with his hand for about five minutes. This encounter ended when Ava’s friend came

to the house to invite Ava to a playdate.

Another time that Fuentes and Ava were at home by themselves, Fuentes

asked her to go into her parents’ room. Fuentes then pushed Ava onto the bed and

told her to remove her pants. Ava recalled that she was lying on her back with her

legs hanging off the bed. Fuentes then rubbed Ava’s vagina, removed his own pants,

and rubbed his penis “back and forth[]” against her vagina. According to Ava,

9
Fuentes then placed her legs on his shoulders and tried to put his penis into her

vagina, but she kicked him away. She stated that although his penis contacted her

vagina, it did not penetrate it. Ava then “grabbed [her] clothes from the floor and”

waited in the bathroom until Mother returned home.

Another time, Fuentes rubbed Ava’s breast and vagina outside her clothing.

Ava remembered that she was angry because she was powerless to stop Fuentes. In

her words, “I didn’t know what to do when he was like - - I didn’t know if he would

have hurt me or something.” When Ava was about nine years old, Fuentes showed

Ava lubricants and a vibrator belonging to Mother, but he did not attempt to use

either of these products on Ava. Fuentes further tried to show Ava pornography, but

was unable to do so because he did not have the password to unlock this content.

Although Ava told Mother of some of Fuentes’s inappropriate conduct,

Mother did not believe Ava, and Fuentes sounded angry that Ava had reported his

abuse. Ava testified that Fuentes’s abuse continued, and she began cutting herself

“because [she] wanted to kill [her]self[]” due to the abuse and Mother’s disbelief.

When Ava was twelve, she disclosed Fuentes’s abuse to Father at the end of

a weekend visit with him. Although the weekend began “just like a normal weekend

where [Ava] would spend time with” Father, she later came to understand that

Mother did not want Ava living with her anymore. Ava became angry that her “own

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mother didn’t want [her],” and disclosed Fuentes’s abuse so Fuentes would go to

prison and thus be unable to abuse Ava’s half-sister.

When asked about specific text messages and social media posts, Ava

explained that one post was about a boy and had nothing to do with Fuentes. Ava

denied that Father had held a knife to her chest and further denied having sent Mother

a text message saying otherwise but acknowledged that she told Mother by text

message that she wanted to come home.

Dr. Danielle Madera’s Testimony

After the trial court conducted a hearing outside the jury’s presence, defense

counsel objected to Dr. Madera (“Madera”) “being allowed to testify as an expert.”

The trial court overruled this objection, finding that Dr. Madera “ha[d] the

qualifications, expertise in this area, that the subject matter of the testimony is an

appropriate one for expert testimony. And admitting the expert testimony would

assist the fact finder in deciding this case.”

Madera outlined her educational and professional qualifications, which

include a doctoral degree and her then current position as “a licensed psychologist

as the clinical director at one of the Harris County juvenile probation department’s

post-adjudicated facilities.” She also has experience as a forensic interviewer and

has provided “expert court testimony in child sexual abuse cases and human

trafficking cases in” both Harris and Montgomery Counties on many occasions.

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Although Madera did not meet with Ava or Mother to prepare to testify, she

reviewed the police report, Ava’s forensic interview, Mother’s police interview, and

Ava’s journal entries and counseling records. Madera testified in general terms about

categories of behavior of children who have been victims of sexual abuse, noting

that children vary with age, gender, and cognitive ability. By way of example, she

testified that a child who was once fondled by an uncle is “completely different”

from a child that’s been sexually abused weekly for two years. She noted that

depression, the first category, may present as sadness and withdrawal, to self-harm,

to anger and fighting. The next category, anxiety, may include post-traumatic stress

disorder, with symptoms ranging from hypervigilance to flashbacks and nightmares.

Interpersonal difficulties, the third category, results from a breach of trust, and

makes it difficult to make and maintain relationships with both peers and family

members. The fourth category, sexualized behavior, is “most indicative of sexual

abuse[.]” Madera described such behavior as including masturbation and

“[k]nowledge of sexual activity that’s well beyond their year[s] that they should have

no access to.”

Madera testified that although no specific behavior identifies a child as a

sexual abuse victim, “a cluster of these behaviors or symptoms” are usually seen in

children who have been sexually abused. According to Madera, Ava’s records

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showed evidence of each of the four behavioral categories she described. Madera

specifically mentioned cutting and self-harm.

When asked to tell the jury about grooming, Madera described it as “any

behavior that’s taken by the perpetrator with the goal of befriending the child and

creating that emotional connection and lowering the child’s inhibitions to later

sexually abuse that child.” Grooming may include “tickling, wrestling, any means

to have your hands on a child where you, like, later gradually increase that behavior.”

It may also include “walking out with no clothes on” or driving a wedge “between

the child and their parent with the goal of discrediting that child so if and when they

do disclose, that parent is less probable to believe the child.”

Madera then recounted the disclosure process, observing that disclosure is

“more often than not” delayed. Madera testified that “one of the largest barriers [to

disclosure of abuse] is having a non-believing caregiver.” She continued, noting that

when younger children delay disclosing their abuse, that delay “can be [due to] a

lack of awareness of their bodies, not having the language, or not even understanding

that what’s happening is wrong yet because maybe nobody’s talked to them about

sex[.]” Blaming the victim is another barrier to disclosure. Conversely, however, an

environment where the victim feels safe, heard, and understood fosters disclosure.

According to Madera, it is common for a child of divorced parents to disclose to the

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non-custodial parent “if [] they have a good relationship with that parent but also if

you have a non-believing parent in your primary home.”

Madera noted that the initial disclosure usually includes only partial

information about the abuse, since the child is “testing the waters[]” to “gauge the

reaction” of the person to whom the child disclosed. According to Madera, when

there are multiple instances of abuse occurring over a long time period, an abused

child may not recall details consistently or may blend or forget some details of abuse.

Consequently, children often “will remember the first incident, possibly the last one,

and anything in between that would have stood out to them for whatever reason.”

Mother’s Testimony

Mother testified that she has known Fuentes for about ten years, and they have

been married for eight of those years. Mother has three children: her seventeen-year-

old-son; her daughter, Ava; and her six-year-old daughter. According to Mother,

Fuentes had a “very good reputation[]” in the community and was a truthful person.

Mother further testified that Fuentes has never lied. In Mother’s opinion, Ava had a

reputation as “a loving child[,]” but “[s]he can lie sometimes.”

Mother testified that on July 25, 2022, she texted Ava to get an explanation of

what happened. During that text message exchange, Mother and Ava discussed

Fuentes as follows:

[Mother]: Why did you lie? He never hurt you.

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[Ava]: Ok and.

[Mother]: If he did why is he not in jail?

[Ava]: I don’t want to talk about it anymore.

[Mother]: He never had sex with you. CPS told me everything.

[Ava]: I know he didn’t with me. I never said he did.

[Mother]: One day we will have to talk about it.

When asked about other portions of her text exchanges with Ava, Mother denied but

then acknowledged that Ava stated multiple times that Fuentes had touched her and

that she was not comfortable at Mother’s home.

Mother also denied that Ava told her Fuentes touched her, Ava,

inappropriately, but after initially denying it, she acknowledged calling Father’s

mother during the weekend of October 3 to discuss where Ava would live. She

denied telling Father’s mother that Ava was trying to seduce Fuentes, but when

asked about an interview, Mother conceded that the videotape of the interview would

be accurate.

Mother testified to some of Fuentes’s statements to her. She testified that

Fuentes told her he caught Ava going through Mother’s belongings and finding

lubricant, and that he explained its use to Ava. Fuentes also may have allowed Ava

to watch pornography, apparently telling Ava “[i]f that’s what you think you want

to watch, if that’s what you want to watch, go ahead[,]” before leaving the room.

15
According to Mother, Fuentes told her that Ava came on to him multiple times, and

that Ava once solicited sexual intercourse with Fuentes by lying on Mother’s bed

naked and telling Fuentes to “stick it in[.]”

Although Mother testified that she had “never been sexually abused,” she later

admitted that she had, in fact, wished someone had believed her when she was twelve

years old and “was in a possibility of a situation like that when [she] was younger.”

Mother’s parents learned of the situation but failed to protect Mother because they

were too afraid to report it to law enforcement.

Other Evidence

The record contains portions of Ava’s journal, as well as text message

exchanges and McGrew’s videotaped interview with Fuentes. It also contains her

school records.

In her journal, Ava wrote:

I really need someone to talk to. I’ve been thinking about it for a while
now. I really wanna go away from home and go live with a friend. I’m
tired of it at home i’m fed up. I don’t feel safe or comfortable in my
own home anymore. Or in May after my dad graduates (hopefully) I
will go live with him, well I will try. Now that I’m 12 I get to choose
who I wanna live with. Hopefully I do. If I keep living w/my mom I
don’t think I’ll make it past the year 2021 or the age of 12.

There’s times I just wanna scream let everything out. It’s hard. You
know? Like what can I do to calm myself down? And then there’s times
I get brain overloads like when I broke the pencil I needed the urge to
do something. And then when I was at school I calmed myself through
a vape but I want to do something legal. But I don’t know. It’s hard.
Writing down everything un-ravels my brain. For example when my
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brain is all jumbled writing down my thoughts is like sorting it out. It
seperates everything so I can think clearly until I get another overload
then the cycle repeats over and over and that’s when I lose it and the
negative comes in. Then that’s were my addiction comes in and
thoughts of suicide or self harm.

Ava then identified a chart where she appeared to rate her feelings and made

notes about her emotional state. Ava made numerous entries in her chart over several

months detailing her emotional states indicating depression, reporting cutting herself

a number of times, and even her feelings about suicide.

Directed Verdict

At the close of the State’s case, Defendant’s counsel moved for a directed

verdict, arguing that there was insufficient “competent evidence to proceed”

regarding “the manner and means of penetration. So first I would like for a directed

verdict as to the entire charge. If you decline that, I would like you to consider a

directed verdict regarding the manner and means of penetration.” The trial court

denied the motions, stating “that the scintilla of evidence regarding that penetration

has been met[.]”

STANDARD OF REVIEW AND APPLICABLE LAW

We review the denial of a directed verdict as a challenge to the sufficiency of

the evidence. See Smith v. State, 499 S.W.3d 1, 6 (Tex. Crim. App. 2016). Evidence

is sufficient to support a conviction if any rational trier of fact could have found each

of the essential elements of the offense beyond a reasonable doubt. See Jackson v.

17
Virginia, 443 U.S. 307, 318–19 (1979); see also Whatley v. State, 445 S.W.3d 159,

166 (Tex. Crim. App. 2014). The applicable elements of aggravated sexual assault

are:

(a) A person commits an offense:
(1) if the person:
...
(B) regardless of whether the person knows the age of the child at the
time of the offense, intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of a child by any
means;
...
(iii) causes the sexual organ of a child to contact or penetrate the
mouth, anus, or sexual organ of another person, including the actor[.]

Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (iii).

“Child” is defined as “a person younger than 17 years of age.” Id. §

22.011(c)(1); see id. § 22.021(b)(1). The statute does not define the terms

“penetrate,” “sexual organ,” or “contact,” so we construe them “according to

common usage.” Green v. State, 476 S.W.3d 440, 445 (Tex. Crim. App. 2015)

(addressing the definitions of “penetration” and “female sexual organ”); see also

Tex. Gov’t Code Ann. § 311.011 (a) (“Words and phrases shall be read in context

and construed according to the rules of grammar and common usage.”). Without

contact, there can be no penetration. See French v. State, 563 S.W.3d 228, 235 (Tex.

Crim. App. 2018) (noting that penetration subsumes contact) (citation omitted).

We review a trial court’s decision to admit or exclude expert testimony under

an abuse of discretion standard. See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim.
18
App. 2010), addressing the admissibility of expert testimony. A trial court abuses its

discretion if its ruling falls outside the zone of reasonableness, and we will not

reverse the ruling unless the trial court acted without regard to guiding rules or

principles. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011)

(referencing “the zone of reasonable disagreement”); Rhomer v. State, 569 S.W.3d

664, 669 (Tex. Crim. App. 2019) (referencing the abuse-of-discretion standard). “A

party may claim error in a ruling to admit or exclude evidence only if the error affects

a substantial right of the party[.]” Tex. R. Evid. 103(a); Pointe v. State, 371 S.W.3d

527, 534 (Tex. App.—Beaumont 2012, no pet.) (citing Tex. R. Evid. 103(a)). A party

will fail to preserve error if his trial complaint does not comport with his appellate

complaint. See Hallmark v. State, 541 S.W.3d 167, 171 (Tex. Crim. App. 2017)

(“Because the complaint on appeal does not comport with either of the trial

objections, nothing is presented for review.”); Sartin v. State, 680 S.W.3d 663, 670

(Tex. App.—Beaumont 2023, no pet.) (holding that the appellate argument was

waived because it did not comport with her trial objections).

ANALYSIS

The Motion for Directed Verdict

Fuentes’s second issue challenges the trial court’s denial of his motion for a

directed verdict on the matter of penetration, which Fuentes bases on Ava’s

testimony that Fuentes did not penetrate her vagina with his penis. Although this

19
argument accurately reflects Ava’s testimony, it disregards the fact that the court’s

charge to the jury permitted the jury to convict Fuentes if it found that Fuentes

“intentionally or knowingly cause[d] the penetration of the sexual organ of the child

by the sexual organ of the actor by any means or cause[d] the sexual organ of the

child to contact the sexual organ of another person, including the actor[.]”4 In other

words, since the jury charge referenced alternate methods of committing the offense

charged, the jury could convict Fuentes upon a finding that his sexual organ

contacted Ava’s sexual organ, regardless of the alleged absence of penetration. See

Santee v. State, 247 S.W.3d 724, 728–29 (Tex. App.—Houston [1st Dist.] 2007, no

pet.) (discussing contact versus penetration).

In Santee, our sister court confronted a similar argument: the appellant

contended that he had not penetrated the complainant’s sexual organ but was

convicted of contacting or penetrating the complainant’s sexual organ. See id. at

726–29. In affirming the conviction, the Santee court held that the disjunctive jury

charge did not allow the appellant to be convicted with a less than unanimous verdict,

since “‘penetration of the genitals necessarily includes contact.’ Thus, a jury that

finds a defendant guilty of penetration of the sexual organ necessarily has

determined unanimously that the defendant made contact with the sexual organ.” Id.

4
The charge also references the victim’s age at the time of the offense, but it
is not disputed that Ava was under fourteen years old at the times of the acts alleged.
20
at 728. (citation omitted). Although Santee complained about the jury charge and

Fuentes complains about the sufficiency of the evidence, Santee nonetheless informs

our opinion in this case, since both Santee and Fuentes base their appellate

arguments on an alleged lack of penetration. See id. at 728–29.

Assuming without deciding that some jurors convicted Fuentes on the basis

of penetration while other jurors convicted Fuentes on the basis of contact without

penetration, the rationale of Santee supports affirming Fuentes’s conviction

regardless of penetration, since there can be no penetration without contact. See id.

Forensic examiner Julie Pilgrim testified that Ava told her during the forensic

interview that Ava “could feel the tip [of Fuentes’s penis] trying to go in[,]” and

stated that “[i]t hurt a lot.” In her trial testimony, Ava stated that Fuentes put his

penis on her vagina and then he tried to “put it in...[t]o, like, the hole in my vagina.”

In short, the record contains evidence of genital contact sufficient to support the

conviction, and further evidence of penetration is not required. See id. See Vernon v.

State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) (penetration proven where

victim testified defendant touched outside of vagina with finger and pressed down

until it hurt, and medical examination revealed healing wound within folds of outer

lips but outside of vaginal canal); see also Guevara v. State, 667 S.W.3d 422, 442

(Tex. App.—Beaumont 2023, pet. ref’d) (As discussed, with exceptions not

21
applicable here, the testimony of a single eyewitness can support a defendant’s

conviction.). We overrule Fuentes’s second issue.

Admission of Madera’s Testimony

Turning to Fuentes’ first issue, at trial Fuentes, through his counsel, objected

to Madera’s testimony, stating “[f]or the record, I would object to her being allowed

to testify as an expert.” In his first appellate issue, Fuentes argues that the trial court

erred in admitting Madera’s testimony, because her testimony purportedly “was

meant to bolster the testimony of one of the State’s witnesses, and where the Expert’s

testimony was used to decide facts that were solely the Jury’s decision to make[.]”

There are three types of objections that can be made to expert testimony: 1)

Rule 104(a) requires a preliminary determination by the trial court concerning the

qualifications of the expert to be an expert witness; 2) Rule 702 requires the trial

court to determine “If scientific, technical, or other specialized knowledge, skill,

experience, training, or education may testify thereto in the form of an opinion or

otherwise; and 3) Rules 401 and 402 allow testimony only if “it tends to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Vela v. State, 209

S.W.3d 128, 130–31 (Tex. Crim. App. 2006). In order to preserve error on any one

or more of these bases, a specific objection must be made at trial on such basis.

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Fuentes’s trial court objection was not sufficiently specific as to which of

these three objections he was bringing when he objected to the “testimony” of

Madera. In order to make the trial court aware of the complaint and the basis of his

objection it must be apparent from the context of the objection found in the record,

if any. See Tex. R. App. P. 33.1(a)(1)(A) (requiring the objection to be specific); see

also Clark v. State, 365 S.W.3d 333, 336–40 (Tex. Crim. App. 2012) (addressing

the requirements that objections be specific). In affirming the appellant’s conviction,

the Clark court stated, “[t]he two main purposes of requiring a specific objection are

to inform the trial judge of the basis of the objection so that he has an opportunity to

rule on it and to allow opposing counsel to remedy the error.” Id. at 339 (citation

omitted). “‘To avoid forfeiting a complaint on appeal, the party must let the trial

judge know what he wants, [and] why he thinks he is entitled to it[.]”’ Brown v.

State, 296 S.W.3d 371, 386 (Tex. App.—Beaumont 2009, pet. ref’d) (quoting

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). Although Fuentes

let the trial court know what he wanted, for Madera’s testimony to be excluded, he

did not advise the trial court why he allegedly was entitled to that relief. Fuentes

therefore forfeited his challenge to Madera’s testimony. See Brown, 296 S.W.3d at

386. See also Shaw v. State, 329 S.W.3d 645, 655 (Tex. App.— Houston [14th Dist.]

2010, pet. ref’d) (cleaned up) (The three requirements raise distinct questions and

issues, and an objection based on one of these requirements does not preserve error

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as to another. Similarly, if a party objects to expert testimony without identifying

one or more of these issues, no error is preserved for our review).

A specific objection is unnecessary when the basis of the objection is “obvious

to the judge and opposing counsel[.]” Zillender v. State, 557 S.W.2d 515, 517 (Tex.

Crim. App. 1977). The basis of Fuentes’s objection, however, was not, since there

were no “statements or actions on the record that clearly indicate[d] what the judge

and opposing counsel understood the argument to be.” Resendez v. State, 306

S.W.3d 308, 315–16 (Tex. Crim. App. 2009). Fuentes’s objection to Madera’s

testimony as a whole could have challenged Madera’s expertise or the bases of her

professional opinions and was not necessarily aimed at the content of her testimony

as bolstering Ava’s testimony or invading the province of the jury as factfinder and

arbiter of witness credibility. See Garcia v. State, 667 S.W.3d 756, 762 (Tex. Crim.

App. 2023) (reiterating the jury’s role as factfinder and sole judge of witness

credibility).

In addition, since Fuentes’s objection at trial does not comport with his

argument on appeal, nothing is preserved for our review. See Thomas v. State, 723

S.W.2d 696, 700 (Tex. Crim. App. 1986); see also Ford v. State, 488 S.W.3d 350,

351 (Tex. App.—Beaumont 2016, no pet.).

For the reasons set forth above, we overrule Fuentes’s initial appellate issue.

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CONCLUSION

Having concluded the evidence was sufficient to support Fuentes’s conviction

and that Fuentes failed to preserve error as to Madera’s expert opinion testimony,

we affirm the trial court’s judgment.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on May 1, 2025
Opinion Delivered July 30, 2025
Do Not Publish

Before Golemon, C.J., Wright and Chambers, JJ.

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