Opinion
02-23-00038-CR
01-25-2024
Rodney Deshun Choice, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 432nd District Court Tarrant County, Texas Trial Court No. 1661647D
Before Womack, Wallach, and Walker, JJ.
MEMORANDUM OPINION
Mike Wallach, Justice
A grand jury charged Appellant Rodney Deshun Choice with two counts of aggravated sexual assault of a child. A petit jury convicted Choice on both counts and assessed his punishment at fifteen years' incarceration on each count. Choice raises five points on appeal. We will affirm.
Because Choice had previously been finally convicted of the felony offense of aggravated assault, fifteen years was the minimum term of imprisonment he faced. See Tex. Penal Code Ann. § 12.42(c)(1).
I. BACKGROUND
Choice does not challenge the sufficiency of the evidence supporting his convictions. We will therefore summarize only the facts relevant to his appellate points.
A. Accusations against Choice
Teresa Roberson was like a sister to Choice and the complaining witness's mother, Enid. To dozens of young boys and girls, Teresa and her husband, Stephen, were "Nana" and "Papa," respectively. On July 4, 2020, the Robersons and Stephen's sister went to Hurricane Harbor in Arlington with several of the girls-including the complaining witness, Ann-along with Choice and his wife, Margaret. As far as the Robersons knew, it was a good, fun day at Hurricane Harbor.
To protect the identities of the minor children involved in this case, see Tex.R.App.P. 9.10(a)(3), we refer to them and their parents by pseudonyms. We note that Choice and several of the witnesses at trial are not related by blood but treated each other, and acted, like family.
Weeks later, in August, Ann emotionally told her sister that Choice had done something to her in the "wave pool" at Hurricane Harbor. Her sister told their mother, who then asked Ann what had happened. Ann told Enid that Choice had put his fingers down into her bathing suit in the deep end of the wave pool and penetrated her vagina. Enid called Teresa and asked her to come over. Teresa called Alicia, whose daughter Mary had also been at Hurricane Harbor with the family on July 4th.
Teresa, Alicia, Mary, and another one of the girls, Molly, all went over to Enid's house. There, Teresa asked Mary if Choice had ever touched her. Mary told Teresa that, when they were at Hurricane Harbor, Choice came up behind her in the wave pool and touched her buttock and the back of her leg. She also told Teresa about another time, a couple of weeks before the Hurricane Harbor incident, when she was lying down watching television at the Robersons' house in Dallas, and Choice lay down next to her and started rubbing her chest underneath her shirt.
At trial, Mary identified Molly as a cousin and Ann as "the daughter of my Nana's friend."
Enid, Ann, Molly, Alicia, and Mary went to the Arlington Police Department and made a police report. Ann and Mary underwent forensic interviews. Choice was charged with indecency with a child by contact in Dallas County and aggravated sexual assault of a child in Tarrant County. He pled guilty to the Dallas County charge in exchange for seven years' deferred adjudication probation.
Detective Dara DeWall testified at trial that "the interview with [Mary] was stopped. She said that she had been interviewed the prior day by another agency, so [they] did not interview her again."
B. Choice's Trial
Prior to trial, the State gave Choice notice of intent to introduce evidence of extraneous offenses and other "bad acts," including the Dallas County offense and Mary's other allegation that Choice had touched her on the buttocks. At a pretrial hearing, the State said that it "would intend to offer during the case in chief a . . . certified copy of [the Order of Deferred Adjudication] as well as [Choice]'s certified fingerprints linking him to that prior." The State added that if the trial court "were to deem that evidence admissible," then it "would intend to call [Mary] to discuss or talk about and testify about the allegations in that prior."
On February 14, 2023, the State gave further notice of intent to introduce evidence that Choice had "attempted to touch [Molly] on the buttocks," but at trial, it never offered evidence of this alleged incident.
The trial court ultimately ruled the evidence admissible and admitted court documents, including a certified copy of the Order of Deferred Adjudication from Choice's Dallas County case, into evidence over his objection. Mary testified about the offense and what Choice had done to her at Hurricane Harbor.
Enid, Ann, Teresa, and Stephen also testified at Choice's trial, as did a forensic interviewer who had interviewed Ann, and the forensic interviewer's supervisor. Choice did not testify in his defense but called Margaret as his sole witness at the guilt phase of trial. Margaret testified that she had been present and had witnessed the incident that Mary alleged had happened at Teresa's house. According to Margaret, Mary burned herself while flat-ironing Choice's hair, and Choice "reached back and tried to move her hand, and . . . he touched her breast accidentally." Margaret testified that Choice apologized "immediately," and Mary said, "That's okay," and then went upstairs and started playing. Margaret averred, "That's all that happened. Nothing was ever said, nothing, no more."
Each side called multiple witnesses to testify at the trial on punishment. Because Choice does not allege that any error occurred at the punishment phase of his trial, we do not need to discuss that testimony.
A jury found Choice guilty of both counts of aggravated sexual assault of a child as charged in the indictment and, after hearing more evidence and the arguments of counsel at the trial on punishment, assessed his punishment at fifteen years' incarceration for each count. The trial court ordered Choice's two fifteen-year prison sentences to be served concurrently.
II. DISCUSSION
In his first point, Choice complains that the trial court erroneously admitted evidence of his extraneous Dallas County offense over his Rule 403 objection. In his next three points, Choice complains that he received ineffective assistance of counsel. In his fifth point, he complains that the errors committed by the trial court and his defense counsel "worked together to create grave doubt about the fairness and integrity of the proceeding." For the reasons that follow, we reject these arguments.
A. Admission of the Dallas County Offense
In his first point, Choice asserts that the trial court reversibly erred when it admitted extraneous offense evidence over his objection that such evidence was unfairly prejudicial. We review a trial court's decision to admit evidence for an abuse of discretion. Wright v. State, 618 S.W.3d 887, 890 (Tex. App.-Fort Worth 2021, no pet.). Under this standard, the trial court's decision to admit evidence will be upheld as long as it was within the zone of reasonable disagreement. Id.
Even if the trial court abused its discretion in admitting the exhibit over Choice's Rule 403 objection, we could not sustain this point. Overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). When the State moved to introduce the Dallas County judgment and charging documents into evidence, the defense objected that it was "more prejudicial than probative." This was the only time he objected to the evidence on that ground, and he did not request a running objection. He had already made other objections to this evidence outside the presence of the jury, and those objections were therefore preserved. See Tex. R. Evid. 103(b). However, his appellate complaint relies on Rule 403. An objection preserves only the specific ground cited. Tex. R. Evid. 103(a)(1)(B); Tex.R.App.P. 33.1(a)(1)(A); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g); see also Fierro v. State, 706 S.W.2d 310, 317-18 (Tex. Crim. App. 1986) (holding that general objection is insufficient to apprise trial court of complaint urged and thus preserves nothing for review). The point of error on appeal must comport with the objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
We will treat Choice's trial counsel's objection that the evidence was "more prejudicial than probative" as sufficient to preserve his appellate complaint under Rule 403. See Tex. R. Evid. 103(a)(1)(B), 403; Tex.R.App.P. 33.1(a)(1)(A); Sanders v. State, 422 S.W.3d 809, 813, 814-16 (Tex. App.-Fort Worth 2014, pet. ref'd).
Generally, a defendant must timely object each time the State offers inadmissible evidence unless the defendant obtains a running objection, which is an exception to the contemporaneous-objection rule. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Ethingjon v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991). Here, Choice did not reurge his Rule 403 objection when Mary testified about the Dallas County offense. He also did not object when the State elicited this testimony from his wife on cross-examination:
Q. Now, you're aware of what the allegation in Dallas County was, right?
A. Yes, sir.
Q. And it's really different than what you described to the jury. Can we agree with that?
A. Yes, sir.
Q. Yeah. The allegation in Dallas County is that Rodney stuck his hand down [Mary]'s shirt and groped her breast.
A. That's not -- that's not true. I was there that night. I saw it all.
Q. I understand. But you understand it's what the allegation in Dallas is?
A. Yes, sir.
Q. That's what [Mary] said, right?
A. We can agree with that.
Q. Your husband pled guilty to that, right?
A. Under the assumption he would get it here. The attorney didn't represent him very well on that.
Q. But regardless, he walked into court, raised his hand, swore that that was true, that he did stick his hand down [Mary]'s shirt and he did grope her breasts. He said all of that, didn't he?
A. Yes, sir.
Finally, we note that Choice did not object when, after the sponsoring witness for the court documents from Choice's Dallas County case had testified and retired, the State made this statement to the jury:
Ladies and gentlemen of the jury, State's Exhibit No. 5A is an Order of Deferred Adjudication for this Defendant, Rodney Deshun Choice.
The offense is indecency with a child by contact, which is a second-degree felony. It was in Dallas County. The date of the proceeding was May 6th of 2021, in that, in exchange for his plea of guilty to that offense of indecency with a child by contact, he received a seven-years' deferred adjudication probation and a $1500 fine.
The jury thus received evidence without objection that Choice had committed the offense of indecency with a child by contact against Mary and had pled guilty to it. Because Choice did not request a running Rule 403 objection or repeat his objection when Mary and Margaret testified about the Dallas County offense, he has not presented a reversible point of error for our review. See Geuder, 115 S.W.3d at 13; Leday, 983 S.W.2d at 718. We overrule Choice's first point.
B. Ineffective Assistance of Counsel
In his second, third, and fourth points, Choice complains that his trial counsel provided ineffective assistance by not objecting to various evidence. The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const. amend. VI. To establish ineffective assistance, an appellant must prove by a preponderance of the evidence that his counsel's representation was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). The record must affirmatively demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
In evaluating counsel's effectiveness under the deficient-performance prong, we review the totality of the representation and the particular circumstances of the case to determine whether counsel provided reasonable assistance under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson, 9 S.W.3d at 813-14. Our review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct was not deficient. Nava, 415 S.W.3d at 307-08.
An appellate court may not infer ineffective assistance simply from an unclear record or a record that does not show why counsel failed to do something. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel "should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Menefield, 363 S.W.3d at 593. If trial counsel did not have that opportunity, then we should not conclude that counsel performed deficiently unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Nava, 415 S.W.3d at 308. Direct appeal is usually inadequate for raising an ineffective-assistance-of-counsel claim because the record generally does not show counsel's reasons for any alleged deficient performance. See Menefield, 363 S.W.3d at 592-93; Thompson, 9 S.W.3d at 813-14.
1. Choice's trial counsel was not ineffective for failing to lodge a meritless objection when the State called Mary to testify.
In Choice's second point of error, he argues that he received ineffective assistance of counsel when his attorney failed to object to Mary's extraneous-offense testimony. Importantly, we begin our analysis of Choice's second point by noting that Choice does not contend that his trial counsel was ineffective for failing to reurge his Rule 403 objection when Mary testified. Rather, Choice argues that he received ineffective assistance of counsel "because his trial attorney did not object when the State called Mary to testify without first having a hearing outside the presence of the jury to determine the admissibility of her testimony, pursuant to Article 38.37 . . . and pursuant to the trial court's own order." He correctly contends that Article 38.37 of the Texas Code of Criminal Procedure mandates a hearing outside the presence of the jury before evidence that a defendant has committed a separate offense may be introduced. See Tex. Code Crim. Proc. Ann. art. 38.37 §§ 2, 2-a. He acknowledges that "the trial court did conduct an Article 38.37 hearing," but he proceeds to contend that the State "violated two court orders when it called Mary to testify." However, based on the record references Choice provides, it appears to us that the first of the two trial court "orders" he claims the State violated was not an order at all:
THE COURT: Okay. So let's go ahead and have her testify with regard to those matters. If we can take it up outside the presence of the jury, that would be most helpful, if possible.
[THE STATE]: Okay.
THE COURT: And that way we can find out what the -- exactly what you want to put in front of the jury.
[THE STATE]: Okay.
THE COURT: Okay?
[THE STATE]: Now, I don't have her here right now.
THE COURT: I didn't -- I didn't expect that.
[THE STATE]: Okay. But we can do that -- I can have her early one morning or late one evening, whatever Your Honor pleases.
THE COURT: I think early in the morning is probably better.
[THE STATE]: We can arrange that.
THE COURT: Okay.
It was reasonable for Choice's trial counsel to have interpreted this colloquy between the trial court and State not as a trial court order but rather as a suggestion by the trial court to have Mary testify outside the presence of the jury and an offer by the State to make her available "early one morning." Choice's trial counsel thus could have reasonably chosen not to object to Mary's testimony as violative of a trial court order.
It was also objectively reasonable for Choice's trial counsel to have determined that the hearing requirement of Article 38.37 had been complied with because, as the State points out, Article 38.37 does not require an examination of the victim of an extraneous bad act before admitting evidence of that act. See id. art. 38.37. The section of Article 38.37 applicable to Mary's testimony required the trial court to "conduct a hearing out of the presence of the jury" for the purpose of determining "that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt." See id. art. 38.37 § 2-a. Therefore, Choice's trial counsel could have reasonably believed that this hearing requirement had been satisfied by the pretrial hearing at which the trial court documents showing that Choice had pled guilty in Dallas County to indecency with a child by contact for touching Mary's breast in 2020 and that the Dallas court had found that the evidence in that case substantiated Choice's guilt were admitted. Trial counsel is not ineffective for failure to make meritless objections. Thacker v. State, 999 S.W.2d 56, 67 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd); see also Tutt v. State, 940 S.W.2d 114, 118 (Tex. App.-Tyler 1996, pet. ref'd).
The trial court did make an explicit order at the pretrial hearing, but Choice has not shown that the State violated the trial court's order:
THE COURT: ....
[The next document] I have is Defendant's Request for Notice of the State's Intention to Use Evidence [of] Extraneous Offenses at Trial.
The State has already disclosed in its 38.37, and .072. Was there any other matters outside those two that you disclosed that you're planning going into?
[THE STATE]: Your Honor, we filed a global notice of 404(b), extraneous offenses, 38.37 and 38.072 all combined. We did that on January 30th. That included other things not necessarily covered by 38.37, but would be covered by 404(b).
THE COURT: Okay.
[DEFENSE COUNSEL]: The Defense acknowledges receipt of said motion, and we're satisfied that it has been complied with.
THE COURT: Okay. And so that motion is granted. Do not go into those matters until you have a ruling outside the presence of the jury.
This last statement was effectively an in limine order that the trial court issued sua sponte without a motion from either party. It was thus tantamount to a ruling on a motion in limine. A ruling on a motion in limine does not purport to be one on the merits but one regarding the administration of the trial. Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.-Austin 2000, pet. ref'd). Because "it may not be enforced to exclude properly admissible evidence," a motion in limine "is also, by its nature, subject to reconsideration by the court throughout the course of the trial." Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim. App. 1975). The remedy for the violation of a motion in limine rests with the trial court. Banks v. State, 955 S.W.2d 116, 119 (Tex. App.-Fort Worth 1997, no pet.).
Although the trial court said "that motion is granted," the document it was reviewing-Defendant's Request for Notice of State's Intention to Use Evidence of Extraneous Offenses at Trial-did not include a motion for anything. The filing did, however, include a blank order with the language, "On ___, 2021, came on to be considered Rodney Deshun Choice's Motion for Defendant's Request for Notice of State's Intention to use Evidence of Extraneous offenses at trial, and said motion is hereby: (Granted) [or] (Denied)."
"The instant case presents an example of the inadequacies inherent in evaluating ineffective assistance claims on direct appeal." Patterson v. State, 46 S.W.3d 294, 306 (Tex. App.-Fort Worth 2001, no pet.). Choice did not file a motion for new trial or otherwise try to make a record and give his trial counsel an opportunity to explain himself and show whether his failure to object when the State called Mary to testify was grounded in sound trial strategy. The record does not reflect counsel's reasons for doing or failing to do the things of which Choice complains. "In such situations, the issues are better presented within the framework of a post-conviction writ of habeas corpus under article 11.07 of the code of criminal procedure." Id.; see Tex. Code Crim. Proc. Ann. art. 11.07; see also Griffin v. State, No. 14-12-00688-CR, 2013 WL 3770921, at *4 (Tex. App.-Houston [14th Dist.] July 16, 2013, pet. ref'd) (mem. op., not designated for publication) ("When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient." (footnote omitted)); Smith v. State, No. 04-03-00544-CR, 2005 WL 1230632, at *6 (Tex. App.-San Antonio May 25, 2005, no pet.) (mem. op., not designated for publication) ("Here, Smith's trial counsel was not asked to explain these complained-of omissions at the motion for new trial hearing, and the record is otherwise silent as to counsel's possible strategies; therefore, we decline to speculate why counsel acted as she did.").
As an appellate court, we may not "reverse a conviction on ineffective assistance of counsel grounds when counsel's actions or omissions may have been based upon tactical decisions, but the record contains no specific explanation for counsel's decisions." See Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). We add that even when extraneous-act evidence is inadmissible, it may still be sound trial strategy-and, thus, not ineffective assistance-not to object. McDaniel v. State, No. 01-18-00598-CR, 2019 WL 3022683, at *3 (Tex. App.-Houston [1st Dist.] July 11, 2019, pet. dism'd, untimely filed) (mem. op., not designated for publication). Because Choice has not proven by a preponderance of the evidence that his counsel's representation was deficient, we overrule his second point.
2. Choice's trial counsel was not ineffective for failing to object when the State elicited testimony about Molly without first obtaining a ruling outside the jury's presence.
In his third point, Choice argues that he received ineffective assistance of counsel when his attorney failed to object to testimony concerning Molly as a "third victim." The "testimony" to which he points came from Teresa-who he contends put Molly "in the same group of girls" who claimed Choice had assaulted them by identifying a photo of all three girls-and from Detective DeWall:
Q: How did this case get started?
A: [Enid] and [Ann], Amanda, [Molly] and [Alicia] and [Mary] came to the Arlington Police Department north station to make a report.
....
Q: Okay. After reviewing this case and -- did you -- who did you talk to next after reviewing this case?
A: I -- when I talked to Teresa, I let her know that we needed to do a forensic interview of all three girls. She agreed to bring them in, and I sent requests for the forensic interviews.
....
Q: And did you do a forensic interview with [Mary]?
A: Yes. It started -- forensic interview was started with [Mary].
Q: Okay. What about [Molly]?
A: [Molly] did not show up that day. I -- I can't remember why she didn't.
Q: Were both of these girls at Hurricane Harbor that day?
A: Three of them. [Ann], [Mary], and [Molly], yes.
Choice argues that the State violated the trial court's "order" by introducing this evidence and that "failing to object to the State's misconduct fell outside reasonable and competent practice." Here again, Choice references the trial court's order at the Article 38.37 hearing to "not go into those matters [without] a ruling outside the presence of the jury." When read in context, however, the "matters" covered by this order did not include any acts involving Molly. Neither the trial court nor the parties mentioned Molly at the Article 38.37 hearing, and the "global notice" the State filed on January 30, 2023, did not list any offenses or other acts that referenced Molly as a third victim. The record thus does not support Choice's contention that if his defense counsel had objected, then "the trial court would have sustained the objection, given its order to the State."
The State filed an amended notice on February 14, 2023, listing additional extraneous acts, including that Choice had "attempted to touch [Molly], a child under the age of 17, on the buttocks" on July 4, 2020. However, the only "notice" referenced by the parties immediately prior to the trial court's order in limine was the one the State had filed "on January 30th."
Even if Choice is correct about how the trial court would have ruled had his trial counsel objected, that is not sufficient to show ineffective assistance of counsel. To successfully assert that trial counsel's failure to object amounted to ineffective assistance, Choice must show that the trial court "would have committed error in overruling such an objection." Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). Because a motion in limine is "subject to reconsideration by the court throughout the course of the trial," the trial court would not have erred by reconsidering its own order and allowing the State to elicit references to Molly without first obtaining a ruling outside the presence of the jury. See Norman, 523 S.W.2d at 671. We overrule Choice's third point.
3. Choice's trial counsel was not ineffective for failing to object to admissible testimony from two expert witnesses.
In Choice's fourth point, he argues that he received ineffective assistance of counsel because his attorney failed to object when "the State elicited bolstering testimony from two expert witnesses that [Ann] was telling the truth." He first complains of this testimony from Aimee Davis, the forensic interviewer who had interviewed Ann:
Q. Is it your job to determine if the child is telling the truth or not?
A. No, sir. ....
Q. Are there certain things that you're trained to look for if a child's not being honest with you?
A. Yes, sir.
Q. And in your experience, have you ever had concerns with a child not being honest with you?
A. Yes, sir, I have.
Q. When you have those concerns, what do you do?
A. I ask like follow-up questions with them, and then I also let the team know as well.
Q. In this particular interview, did you have any of those concerns with [Ann]?
A. No, sir, I did not.
Expert testimony does not assist the jury and is thus inadmissible if it constitutes a direct opinion on the truthfulness of a child complainant's allegations. Yumt v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993). The State therefore may not elicit expert testimony that a particular child is telling the truth or that child complainants as a class are worthy of belief. Id. at 711-12. Nor may an expert offer an opinion on the truthfulness of a child complainant's allegations. Schutz v State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997).
We do not think that Davis's merely testifying that she did not have any concerns about Ann being dishonest with her constituted "a direct opinion on the truthfulness" of a child complainant's allegations. "The testimony did not convey the interviewer's opinion as to whether the child was telling the truth." Cantu v. State, 366 S.W.3d 771, 778 (Tex. App.-Amarillo 2012, no pet.). Indeed, in the very same case from which Choice quotes the law on this point, Rojas v. State, we held that a trial court did not abuse its discretion by allowing a forensic interviewer "to testify regarding red flags, behavioral characteristics, manipulation, coaching, the girls' describing sensory and peripheral details, and the consistency between the girls' interviews because such opinions were not direct comments upon the truth of [the girls'] allegations." No. 02-22-00039-CR, 2023 WL 4115863, at *12 (Tex. App.-Fort Worth June 22, 2023, pet. ref'd) (mem. op., not designated for publication). We have also held that a trial court did not abuse its discretion by allowing a forensic interviewer to testify about her "lack of concern" during the forensic interview that a child complainant had been coached. Hernandez v. State, Nos. 02-16-00373-CR, 02-16-00374-CR, 2018 WL 3764066, at *9 (Tex. App.-Fort Worth Aug. 9, 2018, pet. ref'd) (mem. op., not designated for publication).
Here, prior to the testimony to which Choice claims his trial attorney should have objected, Davis testified about the techniques she followed in her interview with Ann. She testified that she asked open-ended questions because she wanted "to be able to make sure that the child gets to lead the interview." In the context of this record, Davis's testimony was appropriate, and the trial court would not have erred by overruling an objection that Davis was offering an opinion on the truthfulness of Ann's allegations. Cf. Reynolds v. State, 227 S.W.3d 355, 366 (Tex. App.-Texarkana 2007, no pet.) (expert's testimony that the child did not exhibit indications of coaching was appropriate "because she was explaining how she interviews children and the steps taken to ask nonleading questions and allow the child to tell their own story").
Choice also complains of this testimony the State elicited from Samantha Torrance, the forensic interviewer supervisor who testified generally about child sexual abuse cases:
Torrance testified that she had never met Ann and did not observe her forensic interview.
Q. And once a child outcries about sexual abuse, there's a lot of steps they have to go through before they walk into a courtroom; is that fair?
A. Yes, sir.
Q. They have to report it to a parent or adult?
A. Correct.
Q. They have to talk to law enforcement?
A. They -- we -- they might have to talk to law enforcement. At least the parent has to make that report to law enforcement, yes.
Q. There's an invasive medical exam?
A. There is a medical exam at times, yes.
Q. There's a forensic interview?
A. Yes.
Q. They have to come talk to the assistant district attorneys?
A. Yes, they do.
Q. Then they have to come to court and talk to these nice people
here in the jury box?
A. Correct.
Q. Based on your training and experience, are children -- children who are not truthful, do they make it this far in the process, typically?
A. Typically if there's concerns regarding a child's credibility, there are a lot of people who will talk about those concerns before we get to this point. And if I ever have concerns, I would be sure to notify the investigators or the District Attorney's Office.
Choice contends that this testimony "improperly bolstered Ann's credibility." We cannot agree. Nothing Torrance said approaches direct testimony that Ann was telling the truth. She did not even answer the prosecutor's last question; she testified about what she "[t]ypically" does and what she "would" do "if" she had concerns regarding a child's credibility. Because Choice has failed to show that Torrance's testimony was objectionable as "improper bolstering," he has not shown that the trial court would have committed error in overruling such an objection. He therefore has not shown that the trial counsel's failure to object amounted to ineffective assistance. See Martinez, 330 S.W.3d at 901; see also Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) ("To show ineffective assistance of counsel for the failure to object during trial, the applicant must show that the trial judge would have committed error in overruling the objection."). Choice's fourth point is overruled.
C. Cumulative Error
In his fifth point, Choice argues that each of the errors in this case, even if not harmful standing alone, have a "cumulative harmful effect" that "casts significant doubt on the jury's verdict." We have concluded that none of Choice's other points demonstrate error in the trial court's judgment. Having overruled Choice's first four points, we likewise overrule his fifth point. See Baugus v. State, No. 02-22-00015-CR, 2023 WL 3370718, at *16 (Tex. App.-Fort Worth May 11, 2023, pet. ref'd) (mem. op., not designated for publication) ("Baugus's cumulative-error complaint lacks merit because there is no error to cumulate."); Abel v. State, No. 02-18-00051-CR, 2020 WL 5048078, at *36 (Tex. App.-Fort Worth Aug. 27, 2020, no pet.) (per curiam) (mem. op., not designated for publication) (holding that because the court had overruled appellant's other appellate issues, his "cumulative-error complaint lacks merit because there is no error to cumulate"); Bell v. State, No. 02-18-00244-CR, 2019 WL 1967538, at *9 (Tex. App.-Fort Worth May 2, 2019, pet. ref'd) (mem. op., not designated for publication) ("Bell argues that even if each of his previous points do[es] not constitute harm sufficient for reversal, their cumulative effect does .... But his individual points either do not demonstrate reversible error or do not show that he was harmed. Therefore, there is no error to cumulate."). We overrule Choice's fifth point.
III. CONCLUSION
Having overruled all of Choice's points on appeal, we affirm the judgments of the trial court.