Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-22-00161-CR
Brandon Joshua VIGIL, Appellant
v.
The STATE of Texas, Appellee
From the 454th Judicial District Court, Medina County, Texas Trial Court No. 20-06-13648-CR Honorable Daniel J. Kindred, Judge Presiding
Opinion by: Rebeca C. Martinez, Chief Justice Concurring Opinion by: Beth Watkins, Justice, joined by Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Beth Watkins, Justice
Delivered and Filed: June 7, 2023
AFFIRMED
A jury convicted appellant Brandon Vigil of continuous sexual abuse of a child, a first-
degree felony, and the trial court assessed punishment at forty years’ confinement in the Texas
Department of Criminal Justice. See TEX. PENAL CODE ANN. § 21.02. In three issues, Vigil
complains that the trial court abused its discretion in overruling his (1) hearsay objection to therapy
records; (2) objection to the State’s designation of a forensic nurse examiner as an outcry witness;
and (3) request to conduct a voir dire examination of a law enforcement officer. We affirm. 04-22-00161-CR
I. BACKGROUND
At trial, the jury considered the testimony of, among others, B.V., Vigil’s daughter; B.V.’s
mother (hereinafter “Mother”); Medina County Sheriff’s Deputy Dustin Reyes; Kara Lands, a
forensic interviewer at the Bluebonnet Children’s Advocacy Center (hereinafter “BCAC”); and
Pennie Robertson, a clinical social worker at BCAC.
When B.V. was approximately twelve or thirteen years old, her Mother noticed cuts on her
arms. B.V. testified that she was angry and sad because she “never had the courage to say
anything” about Vigil’s conduct, and these feelings caused B.V. to cut herself. Mother asked why
she was cutting herself, and B.V. responded, “my dad.” After Mother prodded, B.V. “told her all
the things that [Vigil] had done.” Mother informed law enforcement, and B.V. spoke with a “lady”
at BCAC. B.V. told the lady “mostly . . . pretty much the same” things that she had told her
mother, but “there were a few things [that B.V.] told [the lady] that [she] didn’t tell” Mother. On
cross examination by Vigil’s counsel, B.V. was asked:
VIGIL’S COUNSEL: Did you give [Mother] details like you did to the lady — to the people at [BCAC]?
B.V.: No.
VIGIL’S COUNSEL: You just told generally what happened, right?
B.V.: Yes.
When Mother prodded B.V. for details, she responded with “very vague” answers.
Mother testified that she asked B.V. what was wrong upon noticing cuts on B.V.’s arms.
B.V. then burst into tears and told Mother: “My dad is molesting me. My dad has touched me.
My dad has been doing things to me.” Mother reported B.V.’s allegations to the Medina County
Sheriff’s Office, and she was placed in contact with Deputy Reyes. When asked by the State, “did
[B.V.] ever give you any specific details or just vague statements,” Mother answered:
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Yes[, to] both. She did give me specific details after. [sic] Initially, she did not want to disclose things with me. She was very, again very reserved with herself, and once she talked with Deputy Reyes and all that came out with him, then weeks and months went by and she would give me bits and pieces of what happened to her and I never — I never went and asked her anything. I never told her let’s sit down and let’s talk about it . . . .
Deputy Reyes testified that he spoke with Mother over the telephone, and he advised
Mother to refrain from speaking to B.V. about Vigil’s contact. Deputy Reyes then made an
appointment for B.V. to undergo a forensic interview at BCAC. He, however, did not arrange for
a SANE examination. 1 Deputy Reyes explained that he did not request a SANE examination
because, according to B.V., the last time Vigil had sexual contact with her was approximately a
year earlier. At this point in Deputy Reyes’s testimony, Vigil’s counsel sought to conduct a voir
dire examination “about his expertise in what he’s testifying about.” The State responded that
Deputy Reyes was providing “just general information known by law enforcement in his training.”
The trial court overruled Vigil’s objection and noted that his counsel would have an opportunity
to cross examine Deputy Reyes.
As the State began questioning Lands, Vigil excepted to the State’s request to designate
Lands as an outcry witness under Article 38.072 of the Texas Code of Criminal Procedure. On
voir examination by the State, Lands testified that, on July 3, 2019, she conducted a forensic
interview of B.V. Lands recalled that B.V. told her about four instances when Vigil initiated sexual
contact with her. First, B.V. described to Lands an incident that occurred when she was
approximately five or six years old. After Vigil isolated B.V. in his bedroom, he undressed B.V.,
and he “touched her private part with his private part.” Second, B.V. told Lands about a time when
Vigil took B.V. in a bathroom at his mother’s house, masturbated, and made her swallow his
ejaculate from a spoon. Third, B.V. told Lands that Vigil made her masturbate him in a car while
1 A SANE examination is an exam conducted by a sexual assault nurse examiner.
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parked outside an apartment complex. Fourth, B.V. described an incident where, when she was
approximately six or seven years old, Vigil performed oral sex on her. On cross examination by
Vigil’s counsel, Lands testified that, before any forensic interview begins, she is informed whether
the allegations are sexual or physical in nature. In this case, Deputy Reyes conveyed that
information to Lands. When pressed by Vigil’s counsel, Lands could not remember what Deputy
Reyes told her about the allegations before she interviewed B.V. The trial court overruled Vigil’s
objection.
After the forensic interview, B.V. received therapy by Pennie Robertson at BCAC.
Robertson testified that she provided B.V. with Trauma Focus Cognitive Behavioral Therapy.
During B.V.’s therapy sessions, B.V. wrote a narrative about Vigil’s sexual contact with her, and
she shared the story with Robertson. The narrative writing process, according to Robertson, helps
improve a patient’s coping skills. It was through B.V.’s narrative that Robertson learned the details
of Vigil’s sexual contact with B.V. Robertson maintained records of her therapy sessions with
B.V. These records contain Robertson’s observations about B.V.’s wellbeing and the narrative
that B.V. recounted to her.
Ultimately, the jury convicted Vigil of continuous sexual abuse of a child, and the trial
court assessed punishment at forty years’ confinement in the Texas Department of Criminal
Justice. Vigil timely appealed.
II. DISCUSSION
A. Standard of Review
Vigil’s first and second issues are subject to an abuse-of-discretion standard of review. See
Castillo v. State, 71 S.W.3d 812, 818–19 (Tex. App.—Amarillo 2002, pet. ref’d) (recognizing that
abuse of discretion standard of review applied to a complaint that the offering party failed to lay a
proper predicate for an autopsy report to qualify for the business-record exception to the hearsay
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rule); Thomas v. State, 309 S.W.3d 576, 578 (Tex.
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-22-00161-CR
Brandon Joshua VIGIL, Appellant
v.
The STATE of Texas, Appellee
From the 454th Judicial District Court, Medina County, Texas Trial Court No. 20-06-13648-CR Honorable Daniel J. Kindred, Judge Presiding
Opinion by: Rebeca C. Martinez, Chief Justice Concurring Opinion by: Beth Watkins, Justice, joined by Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Beth Watkins, Justice
Delivered and Filed: June 7, 2023
AFFIRMED
A jury convicted appellant Brandon Vigil of continuous sexual abuse of a child, a first-
degree felony, and the trial court assessed punishment at forty years’ confinement in the Texas
Department of Criminal Justice. See TEX. PENAL CODE ANN. § 21.02. In three issues, Vigil
complains that the trial court abused its discretion in overruling his (1) hearsay objection to therapy
records; (2) objection to the State’s designation of a forensic nurse examiner as an outcry witness;
and (3) request to conduct a voir dire examination of a law enforcement officer. We affirm. 04-22-00161-CR
I. BACKGROUND
At trial, the jury considered the testimony of, among others, B.V., Vigil’s daughter; B.V.’s
mother (hereinafter “Mother”); Medina County Sheriff’s Deputy Dustin Reyes; Kara Lands, a
forensic interviewer at the Bluebonnet Children’s Advocacy Center (hereinafter “BCAC”); and
Pennie Robertson, a clinical social worker at BCAC.
When B.V. was approximately twelve or thirteen years old, her Mother noticed cuts on her
arms. B.V. testified that she was angry and sad because she “never had the courage to say
anything” about Vigil’s conduct, and these feelings caused B.V. to cut herself. Mother asked why
she was cutting herself, and B.V. responded, “my dad.” After Mother prodded, B.V. “told her all
the things that [Vigil] had done.” Mother informed law enforcement, and B.V. spoke with a “lady”
at BCAC. B.V. told the lady “mostly . . . pretty much the same” things that she had told her
mother, but “there were a few things [that B.V.] told [the lady] that [she] didn’t tell” Mother. On
cross examination by Vigil’s counsel, B.V. was asked:
VIGIL’S COUNSEL: Did you give [Mother] details like you did to the lady — to the people at [BCAC]?
B.V.: No.
VIGIL’S COUNSEL: You just told generally what happened, right?
B.V.: Yes.
When Mother prodded B.V. for details, she responded with “very vague” answers.
Mother testified that she asked B.V. what was wrong upon noticing cuts on B.V.’s arms.
B.V. then burst into tears and told Mother: “My dad is molesting me. My dad has touched me.
My dad has been doing things to me.” Mother reported B.V.’s allegations to the Medina County
Sheriff’s Office, and she was placed in contact with Deputy Reyes. When asked by the State, “did
[B.V.] ever give you any specific details or just vague statements,” Mother answered:
-2- 04-22-00161-CR
Yes[, to] both. She did give me specific details after. [sic] Initially, she did not want to disclose things with me. She was very, again very reserved with herself, and once she talked with Deputy Reyes and all that came out with him, then weeks and months went by and she would give me bits and pieces of what happened to her and I never — I never went and asked her anything. I never told her let’s sit down and let’s talk about it . . . .
Deputy Reyes testified that he spoke with Mother over the telephone, and he advised
Mother to refrain from speaking to B.V. about Vigil’s contact. Deputy Reyes then made an
appointment for B.V. to undergo a forensic interview at BCAC. He, however, did not arrange for
a SANE examination. 1 Deputy Reyes explained that he did not request a SANE examination
because, according to B.V., the last time Vigil had sexual contact with her was approximately a
year earlier. At this point in Deputy Reyes’s testimony, Vigil’s counsel sought to conduct a voir
dire examination “about his expertise in what he’s testifying about.” The State responded that
Deputy Reyes was providing “just general information known by law enforcement in his training.”
The trial court overruled Vigil’s objection and noted that his counsel would have an opportunity
to cross examine Deputy Reyes.
As the State began questioning Lands, Vigil excepted to the State’s request to designate
Lands as an outcry witness under Article 38.072 of the Texas Code of Criminal Procedure. On
voir examination by the State, Lands testified that, on July 3, 2019, she conducted a forensic
interview of B.V. Lands recalled that B.V. told her about four instances when Vigil initiated sexual
contact with her. First, B.V. described to Lands an incident that occurred when she was
approximately five or six years old. After Vigil isolated B.V. in his bedroom, he undressed B.V.,
and he “touched her private part with his private part.” Second, B.V. told Lands about a time when
Vigil took B.V. in a bathroom at his mother’s house, masturbated, and made her swallow his
ejaculate from a spoon. Third, B.V. told Lands that Vigil made her masturbate him in a car while
1 A SANE examination is an exam conducted by a sexual assault nurse examiner.
-3- 04-22-00161-CR
parked outside an apartment complex. Fourth, B.V. described an incident where, when she was
approximately six or seven years old, Vigil performed oral sex on her. On cross examination by
Vigil’s counsel, Lands testified that, before any forensic interview begins, she is informed whether
the allegations are sexual or physical in nature. In this case, Deputy Reyes conveyed that
information to Lands. When pressed by Vigil’s counsel, Lands could not remember what Deputy
Reyes told her about the allegations before she interviewed B.V. The trial court overruled Vigil’s
objection.
After the forensic interview, B.V. received therapy by Pennie Robertson at BCAC.
Robertson testified that she provided B.V. with Trauma Focus Cognitive Behavioral Therapy.
During B.V.’s therapy sessions, B.V. wrote a narrative about Vigil’s sexual contact with her, and
she shared the story with Robertson. The narrative writing process, according to Robertson, helps
improve a patient’s coping skills. It was through B.V.’s narrative that Robertson learned the details
of Vigil’s sexual contact with B.V. Robertson maintained records of her therapy sessions with
B.V. These records contain Robertson’s observations about B.V.’s wellbeing and the narrative
that B.V. recounted to her.
Ultimately, the jury convicted Vigil of continuous sexual abuse of a child, and the trial
court assessed punishment at forty years’ confinement in the Texas Department of Criminal
Justice. Vigil timely appealed.
II. DISCUSSION
A. Standard of Review
Vigil’s first and second issues are subject to an abuse-of-discretion standard of review. See
Castillo v. State, 71 S.W.3d 812, 818–19 (Tex. App.—Amarillo 2002, pet. ref’d) (recognizing that
abuse of discretion standard of review applied to a complaint that the offering party failed to lay a
proper predicate for an autopsy report to qualify for the business-record exception to the hearsay
-4- 04-22-00161-CR
rule); Thomas v. State, 309 S.W.3d 576, 578 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d)
(“We review a trial court’s designation of an outcry witness under an abuse-of-discretion
standard.” (citing Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990))).
B. Therapy Records
While examining B.V., the State asked her to review notes that Robertson had made over
the course of several therapy sessions. B.V. acknowledged that the notes pertained to therapy
Robertson provided to her. The State then offered Robertson’s therapy records for admission.
Vigil objected to them on hearsay grounds. The State countered by arguing that they were
authenticated with a business records affidavit and Vigil’s counsel had received adequate pretrial
notice of the State’s intent to offer them as evidence. The trial court overruled Vigil’s hearsay
Vigil argues in his first issue that “the statements contained within [Robertson’s therapy
records] are hearsay and do not qualify as a business record.” He references Garcia v. State, 126
S.W.3d 921, 925–28 (Tex. Crim. App. 2004), for its proposition that “[w]hen a business receives
information from a person who is outside the business and who has no business duty to report or
to report accurately, those statements are not covered by the business records exception.” Id. at
926. The court in Garcia described the appellant’s trial court objection as a “hearsay within
hearsay” objection. Id. at 925 n.1 (“The only objection that is sufficiently specific under [Texas
Rule of Evidence] 103(a) is that the statements quoted within the business records are themselves
hearsay.”).
We read Vigil’s appellate argument as a “hearsay within hearsay” argument similar to the
one he references in Garcia. However, unlike the appellant in Garcia, Vigil did not lodge a
“hearsay within hearsay” objection in the trial court. Therefore, Vigil’s complaint on appeal does
not comport with his complaint at trial, and it is waived. See e.g., Schmidt v. State, 612 S.W.3d
-5- 04-22-00161-CR
359, 370 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (citing Ponce v. State, 89 S.W.3d 110,
120 n.8 (Tex. App.—Corpus Christi 2002, no pet.); Santschi v. State, No. 14-15-00771-CR, 2017
WL 3090001, at *7 (Tex. App.—Houston [14th Dist.] Jul. 20, 2017, no pet.) (mem. op., not
designated for publication)). Moreover, at trial and again on appeal, Vigil fails to specifically
identify the portion of Robertson’s therapy records that he contends are inadmissible. This
situation militates in favor of overruling Vigil’s first issue because Robertson’s therapy records
contain a mixture of her observations of B.V.’s emotional state and statements that B.V. made to
Robertson. See Schmidt, 612 S.W.3d at 370 (“If the complaint about admissibility fails to refer to
the objectionable portions of the evidence, then the trial court may safely admit or exclude it all.”).
Alternatively, assuming, without deciding, that the trial court abused its discretion in
overruling Vigil’s objection, such an error in this case would be harmless. See Gonzales v. State,
455 S.W.3d 198, 205 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (finding admission of a
page of the complainant’s psychotherapy records to be harmless). Vigil highlights that, during the
jury’s deliberation, it sought additional copies of Robertson’s therapy records. He argues that such
a request coupled with the State’s focus on B.V.’s credibility and what she “had to endure” is
evidence that the State emphasized Robertson’s therapy records. However, Vigil fails to direct us
to any portion of the State’s opening and closing arguments wherein it specifically emphasized
Robertson’s therapy records. Moreover, B.V. provided firsthand testimony about Vigil’s sexual
contact with her, and Robertson testified about the narrative process that she employed during her
therapy sessions with B.V. Thus, B.V.’s narrative, contained in Robertson’s therapy records, is
cumulative of B.V.’s unobjected testimony. See Lamerand v. State, 540 S.W.3d 252, 257 (Tex.
App.—Houston [1st Dist.] 2018, pet. ref’d) (harmless error from the admission of a medical report
containing inadmissible hearsay from the child complainant because the doctor testified about the
same statements without objection).
-6- 04-22-00161-CR
We overrule Vigil’s first issue.
C. Designation of Outcry Witness
In Vigil’s second issue, he complains that the trial court abused its discretion by overruling
his objection to the designation of Lands as the outcry witness. Vigil highlights B.V.’s testimony
that she told the “lady” at BCAC “mostly . . . pretty much the same” things that she had told her
mother, but “there were a few things [that B.V.] told [the lady] that [she] didn’t tell” Mother. The
State responds by arguing that B.V.’s remarks to Mother were “merely general allusions to
potential issues regarding the conduct of [Vigil] towards [B.V.]”
“Article 38.072 is a rule of admissibility of hearsay evidence,” allowing for the admission
of a child victim’s out-of-court statements describing the alleged sexual or physical abuse under
specified, enumerated circumstances. Martinez v. State, 178 S.W.3d 806, 810 (Tex. Crim. App.
2005) (discussing the limitations of article 38.072); see TEX. CODE CRIM. PROC. ANN. art. 38.072,
§ 2(a). Article 38.072 only applies to statements that (1) “describe . . . the alleged offense,” (2)
“were made by the child . . . against whom the charged offense . . . was allegedly committed,” and
(3) “were made to the first person, 18 years of age or older, other than the defendant, to whom the
child . . . made a statement about the offense.” TEX. CODE CRIM. PROC. ANN art. 38.072, § 2(a);
see Sanchez v. State, 354 S.W.3d 476, 484–85 (Tex. Crim. App. 2011). The Texas Court of
Criminal Appeals has explained that, under article 38.072, the proper outcry witness is the first
adult person to whom the child describes the offense in some discernible manner beyond general
insinuations that sexual abuse occurred. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App.
2011).
In announcing its ruling, the trial court stated:
I do believe the testimony did say that the child made her mother aware that something happened but as to details, I mean, I think the mother was clear she didn’t
-7- 04-22-00161-CR
get details until quite some time. So I’ll overrule your objection and I’ll allow Ms. Lands to testify as the outcry witness.
We conclude that the trial court, in considering the testimony before it at the time it
overruled Vigil’s objection, did not abuse its discretion. As the trial court stated, it considered
B.V.’s testimony that Vigil highlights, B.V.’s later elaboration that she told the “lady” at BCAC
more details, and Mother’s testimony that B.V. initially shared only “bits and pieces” of what B.V.
recalled had happened. See Thomas v. State, 309 S.W.3d 576, 577–79 (Tex. App.—Houston [14th
Dist.] 2010, pet. ref’d) (concluding that a child victim’s statements to her mother that appellant
used his hands to touch her was insufficient to designate mother as outcry witness because it was
a “general allusion” that failed to describe the alleged offense in a discernible manner); Reyes v.
State, 274 S.W.3d 724, 728–29 (Tex. App.—San Antonio 2008, pet. ref’d) (providing that,
although the child first acknowledged to social worker she had been abused, the trial court did not
err when it concluded that such general acknowledgment did not provide sufficient detail).
We overrule Vigil’s second issue.
D. Voir Dire of Deputy Reyes
In Vigil’s third issue, he complains that Deputy Reyes testified as an expert and the trial
court erred in overruling his counsel’s request to conduct a voir dire examination of Deputy Reyes.
Vigil further complains that his trial counsel was deprived of the “underlying facts or data” relied
on by Deputy Reyes and that the lack of a voir dire examination allowed Deputy Reyes, as an
expert, to “provide damaging and inadmissible testimony.”
Texas Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
-8- 04-22-00161-CR
TEX. R. EVID. 702. Vigil neither explains how Deputy Reyes’s investigative decision to forgo
subjecting B.V. to a SANE examination constitutes an expert “opinion” nor references any legal
authority that supports such a proposition. Additionally, Vigil does not specify what “damaging
and inadmissible testimony” Deputy Reyes provided. I conclude that Vigil’s third issue is
inadequately briefed, and therefore, waived. See TEX. R. APP. P. 38.1(i) (“The brief must contain
a clear and concise argument for the contentions made, with appropriate citations to authorities
and to the record.”); see also Wood v. State, 18 S.W.3d 642, 650–51 (Tex. Crim. App. 2000)
(finding issue waived when appellant failed to adequately develop his argument).
III. CONCLUSION
We affirm the trial court’s judgment.
Rebeca C. Martinez, Chief Justice
DO NOT PUBLISH
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