In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
____________
NO. =
01-06-00508-CV
____________
IN THE MATTER OF Z.M.M. =
On Appeal from County Court No.=20
3
Galveston County,=20
Texas
Trial Court Cause No.=20
05JV0261
MEMORANDUM=20
OPINION
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/SPAN>A jury found that appellant, Z.M.M., =
engaged in=20
four counts of delinquent conduct involving aggravated sexual =
assault of a=20
child, and the trial court ordered disposition that appellant be =
placed in=20
custody with his mother and be on probation until his 18th =
birthday. We=20
determine whether appellant has preserved error as to his =
complaint that=20
the prosecutor improperly bolstered the complainant=E2=80=99s =
credibility. We=20
affirm.Background
<=
/SPAN>On=20
four separate occasions, once in July of 2003, once in August of =
2003, and=20
twice in November of 2004, appellant sexually assaulted the =
complainant, a=20
younger boy. During trial, the State called Dr. Lukefahr, an =
expert on=20
child sexual abuse, to testify about reviewing medical reports =
that were=20
prepared by a pediatric nurse, Anjenean Bolster. Dr. Lukefahr =
indicated=20
that the physical findings in the medical report were normal. =
Next,=20
Bolster testified to some of the general indicators of children =
who have=20
been sexually abused. Bolster then testified that when she =
interviewed the=20
complainant at the clinic about the events in question, she asked =
the=20
complainant questions about himself and the events that had taken =
place.=20
After the testimony of Dr. Lukefahr, Bolster, and other witnesses, =
the=20
jury came back with a verdict of true on all four counts of =
delinquent=20
conduct involving aggravated sexual assault.Preservation of Error=20
=
In=20
his sole issue presented for review, appellant contends: (1) the =
first=20
part of Dr. Lukefahr=E2=80=99s testimony improperly bolstered the =
credibility of=20
the complainant; (2) the second part of Dr. Lukefahr=E2=80=99s =
testimony was=20
improper; and (3) the testimony of nurse Bolster bolstered the=20
complainant=E2=80=99s credibility. The first two complaints are =
not preserved by=20
any trial objection. See Tex. R. App. P. =
33.1(a)(1)(A);=20
In re G.A.T., 16 S.W.3d 818, 825 (Tex. =
App.=E2=80=94Houston=20
[14th Dist.] 2000, pet. denied) (holding that a timely objection =
must be=20
made in order to preserve error). The third =
complaint is not=20
preserved because the trial objection, hearsay, fails to comport =
with the=20
argument on appeal, bolstering. See Barnes v. State, 876 =
S.W.2d=20
316, 325 (Tex. Crim. App. 1994) (holding that the trial objection =
did not=20
comport with the issue raised on appeal; consequently, there was =
no=20
preservation for review). To the extent that appellant may have =
attempted=20
to raise a complaint of fundamental error, thereby excusing any =
lack of=20
preservation, we hold that the error raised here does not rise to =
the=20
level necessary to constitute fundamental error. See Blue v. =
State,=20
41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (holding that comments =
of the=20
trial court tainting defendant=E2=80=99s presumption of innocence =
in front of=20
venire were fundamental error of constitutional dimension =
requiring no=20
objection). Accordingly, we overrule appellant=E2=80=99s sole =
issue presented for=20
review.
Conclusion
=
We=20
affirm the judgment of the trial =
court.
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Taft
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Panel consists of =
Justices=20
Taft, Keyes, and=20
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Alcala.
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