TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00687-CR
Jesus Villalobos, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. D-1-DC-13-600008, THE HONORABLE CLIFFORD BROWN, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Jesus Villalobos guilty of continuous sexual abuse of a young
child and indecency with a child by sexual contact for sexually abusing his stepdaughter.1 See Tex.
Penal Code §§ 21.02, 21.11(a)(1). The jury assessed appellant’s punishment at confinement for life
in the Texas Department of Criminal Justice-Institutional Division for the continuous sexual abuse
and 20 years for the indecency. See id. §§ 21.02(h), 12.33. The trial court sentenced appellant in
accordance with the jury’s verdict, ordering the sentences to be served concurrently. On appeal,
appellant complains about ineffective assistance of counsel at trial and the trial court’s failure to
1 The jury heard evidence that from the age of 11 until she was 14, appellant perpetrated various sexual acts against his stepdaughter, Amelia (a pseudonym), on numerous occasions, including “putting his fingers in her vagina” “a lot,” “sucking on her boobs” “many times,” and “licking inside and outside her vagina with his tongue” “multiple times.” Because the parties are familiar with the facts of the case, its procedural history, and the evidence adduced at trial, we do not further recite them in this opinion except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. conduct a reliability hearing pursuant to the outcry statute. Finding no reversible error, we affirm
the trial court’s judgments of conviction.
DISCUSSION
Ineffective Assistance of Counsel
In his first point of error, appellant contends that his trial attorneys rendered
ineffective assistance at trial. He complains of nine actions or inactions on the part of trial counsel,
including failing to file a motion to suppress until the day of trial, failing to object to certain
questions propounded to the victim’s mother, failing to request a hearing to determine the outcry
witness, failing to preserve error regarding hearsay testimony from the police officer who
interviewed the victim, failing to preserve error regarding hearsay testimony from the forensic
interviewer from the children’s advocacy center, failing to object to the interviewing officer’s
testimony about the victim’s sincerity during the interview, failing to object to evidence concerning
appellant’s prior DWI offenses contained in the confession video, making a punishment argument
during closing jury argument of the guilt-innocence phase, and failing to present any evidence during
the punishment phase.
To establish ineffective assistance of counsel, an appellant must demonstrate by a
preponderance of the evidence both deficient performance by counsel and prejudice suffered by the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Nava v. State, 415 S.W.3d 289, 307
(Tex. Crim. App. 2013). The appellant must first demonstrate that counsel’s performance fell below
an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S.
at 687–88; Nava, 415 S.W.3d at 307. The appellant must then show the existence of a reasonable
2 probability—one sufficient to undermine confidence in the outcome—that the result of the
proceeding would have been different absent counsel’s deficient performance. Strickland, 466 U.S.
at 694; Nava, 415 S.W.3d at 308. Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700;
see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).
Appellate review of counsel’s representation is highly deferential; we must “indulge
in a strong presumption that counsel’s conduct was not deficient.” Nava, 415 S.W.3d at 307–08;
see Strickland, 466 U.S. at 686. To rebut that presumption, a claim of ineffective assistance must
be “firmly founded in the record,” and “the record must affirmatively demonstrate” the meritorious
nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012);
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will the trial record by
itself be sufficient to demonstrate an ineffective-assistance claim. Nava, 415 S.W.3d at 308. If trial
counsel has not been afforded the opportunity to explain the reasons for his conduct, we will not find
him to be deficient unless the challenged conduct was “so outrageous that no competent attorney
would have engaged in it.” Id. (quoting Menefield, 363 S.W.3d at 593); Goodspeed, 187 S.W.3d
at 392.
Further, even if an appellant shows that particular errors of counsel were
unreasonable, he must further show that they actually had an adverse effect on the defense.
Strickland, 466 U.S. at 693–95; Cochran v. State, 78 S.W.3d 20, 24 (Tex. App.—Tyler 2002, no
pet.). It is not sufficient that an appellant show, with the benefit of hindsight, that his counsel’s
actions or omissions during trial were of questionable competence. Lopez v. State, 343 S.W.3d 137,
3 142–43 (Tex. Crim. App. 2011). Further, merely showing that the errors had some conceivable
effect on the proceedings will not suffice. Strickland, 466 U.S. at 693; Ex parte Martinez,
330 S.W.3d 891, 901 (Tex. Crim. App. 2011). The appellant must prove that counsel’s errors,
judged by the totality of the representation, not by isolated instances of error or by a portion of the
trial, denied him a fair trial. Strickland, 466 U.S. at 695.
In this case, appellant filed a motion for new trial. However, he did not raise a claim
of ineffective assistance of counsel in the motion. Thus, the record is silent as to why trial counsel
acted or failed to act in the manner that appellant now complains about on appeal. The record is
silent as to whether there was a strategic reason for counsels’ conduct or what the particular strategy
was. Consequently, the record before this Court is not sufficiently developed to allow us to evaluate
those supposed improper actions or failures to act because “[n]either [his] counsel nor the State have
been given an opportunity to respond to” the claims of ineffectiveness. See Menefield, 363 S.W.3d
at 593. Nevertheless, we address appellant’s assertions regarding ineffective assistance.
Motion to Suppress
Appellant first claims that his trial attorneys were ineffective for failing to file a
motion to suppress appellant’s confession until the day of jury selection. Trial counsel have not been
given the opportunity to explain why they did not file the motion earlier or to provide reasons for the
delay. Thus, the record is silent as to the reasons for the late filing of the motion. Moreover, while
appellant cites to portions of the record suggesting the trial court was displeased by the late filing
of the motion, the record also reflects that the court conducted a hearing on the motion, outside the
jury’s presence, prior to the start of testimony. Appellant does not complain about the trial court’s
4 ruling on the motion.2 Appellant cites to no authority, and we are aware of none, indicating that trial
counsel’s performance is deficient based solely on the untimely filing of a motion to suppress when
the trial court accepted the motion and conducted a hearing on it. Furthermore, because the trial
court conducted a hearing on the motion notwithstanding the late filing, appellant has failed to
demonstrate prejudice.
Outcry Hearing, Outcry Testimony, and Opinion Testimony
Appellant also asserts that his trial attorneys were ineffective for failing to request a
reliability hearing under article 38.072 of the Code of Criminal Procedure, commonly known as the
outcry statute. See Tex. Code Crim. Proc. art. 38.072. He maintains that as a result of that failure,
three witnesses testified about Amelia’s outcry statements concerning the sexual abuse: Amelia’s
mother, the interviewing police officer, and the forensic interviewer from the children’s advocacy
center. Appellant contends that because no reliability hearing was conducted to determine the outcry
witness, the testimony of two of those witnesses constituted inadmissible hearsay. Thus, in related
claims, appellant argues that his trial attorneys were ineffective for failing to object to the hearsay
testimony elicited by the State from the interviewing police officer and the forensic interviewer about
Amelia’s outcry statements to them. In similar complaints, appellant contends that his trial attorneys
2 Appellant urged in the motion that a statement he made to police was involuntary based on his blood sugar level; however, appellant acknowledges in his brief that during the hearing on the motion he conceded in his testimony that he knew what he was doing and was aware of what was going on during the interview with the detective. Appellant’s own testimony defeated his claim that his statement was involuntary because his blood sugar was abnormal and he was not aware of what he was doing when he confessed.
5 were ineffective for failing to object to certain questions propounded or testimony elicited regarding
Amelia’s credibility.
When a defendant is charged with certain sexual offenses against a child under the
age of 14, article 38.072 of the Texas Code of Criminal Procedure provides a statutory exception
to the hearsay rule for the victim’s out-of-court statement describing the offense when
offered into evidence by the first adult the victim told of the offense. See id. § 2; Sanchez v. State,
354 S.W.3d 476, 484 (Tex. Crim. App. 2011). Though the terms do not appear in the statute, the
victim’s out-of-court statement is commonly referred to as an “outcry” or “outcry statement” and the
adult who testifies about the outcry is commonly referred to as an “outcry witness.” For the outcry
statement to be admissible, the State must satisfy certain notice requirements, see Tex. Code Crim.
Proc. art. 38.072, § 2(b)(1), the trial court must conduct a hearing outside the presence of the jury
to determine the reliability of the outcry statement, see id. § 2(b)(2), and the victim must either
testify or be available to testify, see id. § 2(b)(3). The statute’s procedural notice and hearing
requirements are mandatory and must be complied with. Long v. State, 800 S.W.2d 545, 547 (Tex.
Crim. App. 1990); see Sanchez, 354 S.W.3d at 484.
The trial court in this case did not conduct the requisite reliability hearing pursuant
to the statute, and trial counsel did not request that the court conduct the hearing or object to the
court’s failure to conduct it. However, the record is silent as to counsels’ trial strategy in not
requesting the hearing or not objecting to the lack of such hearing. Further, while appellant asserts
that the failure to conduct the reliability hearing resulted in the admission of inadmissible hearsay
evidence from two improper outcry witnesses, the record does not support that assertion.
6 As the State points out, Amelia’s mother did not testify about any of her daughter’s
hearsay statements describing the sexual abuse offenses. She described the circumstances under
which Amelia gave her a note that she had written disclosing the sexual abuse. She testified about
confronting appellant with the note and his subsequent apology and admission to perpetrating the
sexual abuse Amelia wrote about. She also described Amelia’s and appellant’s demeanor throughout
these events. She did not, however, recite or testify about the contents of Amelia’s note.
As for the testimony of the interviewing police officer and the forensic interviewer,
the record reflects that both were proper outcry witnesses. Admissible outcry witness testimony
is event-specific, not person-specific. Eldred v. State, 431 S.W.3d 177, 181–82 (Tex.
App.—Texarkana 2014, no pet.); Polk v. State, 367 S.W.3d 449, 453 (Tex. App.—Houston [14th
Dist.] 2012, pet. ref’d). Thus, in cases where a child has been victim to more than one instance of
sexual assault, multiple outcry witnesses may testify about separate acts of abuse committed by the
defendant against the child. Lopez, 343 S.W.3d at 140; Cruz-Romero v. State, No. 12-14-00090-CR,
2015 WL 1823582, at *2 (Tex. App.—Tyler Apr. 22, 2015, no pet.) (mem. op., not designated for
publication); Hernandez v. State, No. 05-12-01118-CR, 2014 WL 1178303, at *3 (Tex.
App.—Dallas Mar. 21, 2014, no pet.) (mem. op., not designated for publication); Brown v. State,
189 S.W.3d 382, 387 (Tex. App.—Texarkana 2006, pet. ref’d); Tear v. State, 74 S.W.3d 555, 559
(Tex. App.—Dallas 2002, pet. ref’d). While both the officer and the interviewer testified about
Amelia’s outcry statements to them, each testified about different abuse events. The officer testified
about Amelia’s hearsay statement to her, which gave a general description of the abuse appellant
perpetrated against her but focused on a detailed description of the last incident before the sexual
7 abuse was reported to police. The forensic interviewer testified that she discussed the last incident
with Amelia during the forensic interview, however, she recounted no details of that discussion in
her testimony. She testified that Amelia spoke to her about “incidents that had occurred in the past,”
and the hearsay statements she described related to the abuse events appellant perpetrated against
Amelia throughout the 5th, 6th, and 7th grades—excluding the final incident. The interviewer did
not testify about the abuse event that was the last incident before the police were notified. Our
review of the record demonstrates that the two outcry witnesses were discussing different occasions
of assault. See Purgason v. State, 405 S.W.3d 171, 182 (Tex. App.—Amarillo 2013, pet. ref’d);
see, e.g., Osborne v. State, No. 07-13-00156-CR, 2015 WL 3463047, at *7 (Tex. App.—Amarillo
May 29, 2015, no pet. h.) (mem. op., not designated for publication) (because teacher
and investigator described different events, testimony of both was admissible); Josey v. State,
97 S.W.3d 687, 692 (Tex. App.—Texarkana 2003, no pet.) (mother proper outcry witness for act of
oral contact, but forensic interviewer proper outcry witness for act of digital penetration). Thus, the
testimony of both outcry witnesses was admissible. Appellant’s counsel cannot be found ineffective
for failing to object to admissible testimony. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim.
App. 2004) (holding counsel not ineffective for failing to object to admissible testimony).
Appellant also complains about counsels’ failure to object to questions propounded
to Amelia’s mother and testimony elicited from the interviewing officer concerning
Amelia’s credibility. The complained-of questions to Amelia’s mother occurred during the
following exchange:
Q. Did you believe [Amelia] when she told you this?
8 A. Yes.
Q. And did you think she was making it up to retaliate for any reason, for looking at her phone, or retaliating for anything else?
A. Not at all.
In context, these questions could be construed to be inquiries into the possible motivation for her
daughter to fabricate the sexual abuse allegations rather than questions relating to Amelia’s
credibility. The complained-of testimony from the interviewing police officer occurred during the
Q. While you were speaking with her, what observations would you say you made about her body language and facial expressions while she was giving this recollection?
A. I mean, she probably cried actual tears the whole time. Her voice was quivering. Her body language was -- she was closed off on herself, very protective of herself. She would reach out to me and put her arms around me and hold my hand and those types of things, but she was shaking and very sincere about everything. I mean, she was just like a scared little girl.
It is clear from the context, including the question asked, that the officer’s reference to Amelia’s
sincerity was part of her description of her observations of Amelia’s demeanor during the interview
rather than a comment on her truthfulness about the allegations.
Nevertheless, even assuming the complained-of hearsay testimony from the
interviewing officer and the forensic interviewer was not proper outcry testimony, and the
complained-of testimony from Amelia’s mother and the interviewing officer was improper opinion
testimony, trial counsel were not given an opportunity to explain their reasoning for not objecting
9 to the testimony. The Court of Criminal Appeals has rejected similar complaints concerning outcry
testimony and opinion testimony regarding a victim’s credibility when the record is silent as to the
reasons trial counsel failed to object:
The record is silent as to why trial counsel failed to object to the outcry-witness testimony. The record could have been supplemented through a hearing on a motion for new trial, but appellant did not produce additional information about trial counsel’s reasons for allowing all three outcry witnesses to give similar testimony about the same events or for allowing opinion testimony about the credibility of the complainant, both without objection. Appellant has thus failed to meet his burden under the first prong of Strickland, and the court of appeals erred in finding otherwise. Because appellant failed to meet his burden on the first prong of Strickland, we need not consider the requirements of the second prong.
Lopez, 343 S.W.3d at 143–44. For these reasons, appellant has failed to demonstrate ineffective
assistance of counsel, founded in the record, as relates to the outcry hearing, outcry testimony, or
purported opinion testimony.
Evidence of Prior DWIs
Appellant also complains about trial counsels’ failure to object to portions of the
video of his confession where he referred to his two prior arrests and convictions for driving while
intoxicated. He maintains that “there could be no reasonable trial strategy” for a defense attorney
to allow the jury to hear evidence of a defendant’s criminal history, and trial counsel should have
objected to the evidence and requested a redaction of this evidence from the video. However, the
record is silent as to trial counsels’ reasons for not objecting to or requesting a redaction of
this evidence.
10 When the record is silent as to defense counsel’s strategy, we will not guess at
counsel’s trial tactics or speculate about the reasons for taking certain actions and not taking others.
See Id. at 142–43 (“[T]he court must not engage in retrospective speculation.”). Indeed, such
speculation could just as easily support the notion that trial counsel acted reasonably and
competently in making the decisions now forming the basis for the appellant’s ineffective assistance
claims. Here, there may be reasonable explanations for not objecting to or requesting redaction of
appellant’s criminal history from the video. For example, while the evidence of appellant’s criminal
history was arguably inadmissible character evidence, see Tex. R. Evid. 404(b) (prohibiting use of
evidence of other crime, wrong, or bad act “to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character”), counsel could have decided
that the impact of misdemeanor DWIs was negligible and could have further reasoned that a
redaction in the confession video might appear to the jury that appellant was attempting to hide
something. Or, in attempt to show that appellant was not a child predator, counsel could have
wanted the jury to know that appellant’s only criminal history involved minor offenses when
compared to the current conduct he was accused of. Ultimately, we do not know why counsel did
not object or seek redaction. Absent record evidence regarding counsels’ strategy or reasoning, we
will presume they exercised reasonable professional judgment. See Hill v. State, 303 S.W.3d 863,
879 (Tex. App.—Fort Worth 2009, pet. ref’d); Poole v. State, 974 S.W.2d 892, 902 (Tex.
App.—Austin 1998, pet. ref’d); see also Lopez, 343 S.W.3d at 143. Further, absent record evidence
regarding counsels’ strategy, we cannot speculate as to whether a valid strategy existed, and thus
appellant cannot rebut the strong presumption of reasonable assistance. Parker v. State,
11 No. 03-10-00739-CR, 2012 WL 3630163, at *6 (Tex. App.—Austin Aug. 22, 2012, no pet.) (mem.
op., not designated for publication).
Moreover, appellant has failed to demonstrate how the admission of the evidence of
his misdemeanor DWI history prejudiced him. Here, there was ample evidence presented to the jury
that appellant sexually abused his stepdaughter as alleged in the indictment: the note Amelia wrote
to her mother disclosing the abuse, Amelia’s detailed testimony recounting the sexually abusive acts
appellant perpetrated against her, the corroborating (and substantive) testimony of the outcry
witnesses, the testimony about appellant’s admission to Amelia’s mother when confronted with the
note, and appellant’s confession. We cannot say that, in the face of all the evidence the jury heard
about the sexual abuse, it is reasonably probable the jury would have reached a different conclusion
had appellant’s trial counsel objected to or requested redaction of the evidence of his prior
misdemeanor DWIs. See Ex parte Martinez, 330 S.W.3d at 904 (“It is unlikely, in the face of all the
evidence with which the jury was presented, that the jury would have reached a different conclusion
in the absence of the [complained-of] evidence[.]”).
Guilt-Innocence Argument
Appellant also contends that his counsel inadequately argued the case to the jury at
the close of the guilt-innocence phase of the trial. He complains that counsel made a punishment
argument during the closing argument at guilt-innocence.
Closing argument is a matter, generally, of strategy. See Thompson v. State,
915 S.W.2d 897, 904 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). The type of closing
argument to make is an inherently tactical decision “based on the way a trial is unfolding, the trial
12 strategy employed, the experience and judgment of the defense attorney, and other factors.” Taylor
v. State, 947 S.W.2d 698, 704 (Tex. App.—Fort Worth 1997, pet. ref’d). “[C]ounsel has wide
latitude in deciding how best to represent a client, and deference to counsel’s tactical decisions in
his closing presentation is particularly important because of the broad range of legitimate defense
strategy at that stage.” Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003) (per curiam). Therefore,
judicial review of an attorney’s summation is highly deferential, id. at 6, and we will second-guess
that strategy only if the attorney’s actions are without any plausible basis. See Bone v. State,
77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (“Under Strickland, the defendant must prove, by a
preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific
act or omission.”).
Here, it is plausible that counsel, after reviewing the evidence presented, concluded
that the best strategy might be to appear open and honest to the jury in hopes of mitigating
punishment. By the time of closing argument, the jury had heard considerable evidence of
appellant’s guilt, not least of which was his own confession to the police. In light of these
circumstances, an attempt to mitigate punishment could have been a realistic strategy. See Flemming
v. State, 949 S.W.2d 876, 881 (Tex. App.—Houston [14th Dist.] 1997, no pet.); see, e.g., Alexander
v. State, No. 09-08-00372-CR, 2009 WL 4681369, at *5 (Tex. App.—Beaumont Dec. 9, 2009, pet.
ref’d) (mem. op., not designated for publication) (“Faced with the mountain of incriminating
evidence pointing to [appellant] as one of the perpetrators of the robbery, trial counsel here, like
counsel for [co-defendant], cannot be faulted for looking ahead to the punishment phase in hopes
of securing a sentence from the jury significantly less than confinement for life.”). Also, a review
13 of the record shows that trial counsel referenced a portion of the jury charge (unidentified in the
record) telling the jury to ignore that portion, which could have been an attempt to focus the jury on
the lesser-included offenses. This could be considered a reasonable strategy given the fact that the
greater offense, continuous sexual abuse of a young child, carries a punishment range with a
minimum incarceration of 25 years, see Tex. Penal Code § 21.02(h), and a defendant serving a
sentence for that offense is not eligible for release on parole, see Tex. Gov’t Code § 508.145(a).
Because plausible reasons for counsel’s argument exist, and counsel was not afforded
an opportunity to explain the reasons for giving the argument he gave, appellant has not shown that
counsel’s closing argument constituted deficient performance. Furthermore, given the overwhelming
evidence of appellant’s guilt, appellant has failed to demonstrate that but-for trial counsel’s
argument, it is reasonably probable the jury would not have convicted him. See Ex parte Martinez,
330 S.W.3d at 904.
Lack of Punishment Evidence
Finally, appellant complains that his trial attorneys were ineffective for failing to put
on “any evidence whatsoever” during the punishment phase of trial. He notes that a defense attorney
has an obligation to investigate and prepare for trial, and summarily asserts that “counsel did nothing
to help [their] client at punishment.” He complains that “[t]he jury was given absolutely no evidence
by the defense to guide them in their [sic] assessment of punishment.” However, the “failure to call
witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such
witnesses were available and appellant would benefit from their testimony.” Perez, 310 S.W.3d at
894 (quoting King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)). Accordingly, a claim of
14 ineffective assistance of counsel based on counsel’s failure to call witnesses fails in the absence of
a showing that such witnesses were available to testify and that the defendant would have benefitted
from their testimony. Ex parte White, 160 S.W.3d at 52. Here, the record fails to identify any
witnesses or evidence available to be presented during the punishment phase. Nor does appellant
establish the content of any unidentified evidence or testimony that would have benefitted him
during the punishment phase of trial. Appellant’s claim that trial counsels’ performance was
deficient or that he was harmed by counsels’ alleged inadequate performance concerning the
punishment phase is mere speculation without support in the record—both as to counsels’ purported
failure to investigate or prepare for trial and the existence of beneficial evidence that was available
to be presented at the punishment phase. Such speculation does not constitute a demonstration,
founded in the record, that counsels’ assistance was ineffective. See Villa v. State, 417 S.W.3d 455,
463 (Tex. Crim. App. 2013).
Conclusion
On the record before us, appellant has failed to demonstrate deficient performance
on the part of his trial attorneys or that he suffered prejudice because of the alleged errors of counsel.
Thus, he has not shown himself entitled to reversal based on ineffective assistance of counsel. See
Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013) (“[U]nless there is a record
sufficient to demonstrate that counsel’s conduct was not the product of an informed strategic or
tactical decision, a reviewing court should presume that trial counsel’s performance was
constitutionally adequate ‘unless the challenged conduct was so outrageous that no competent
attorney would have engaged in it.’”). We overrule appellant’s first point of error.
15 Article 38.072 Hearing
In his second point of error, appellant complains about the trial court’s failure to
conduct a hearing pursuant to the outcry statute. See Tex. Code Crim. Proc. art. 38.072.
As previously discussed, when a defendant is charged with certain sexual offenses
against a child under the age of 14 or a disabled individual, article 38.072 of the Texas Code of
Criminal Procedure provides a statutory exception to the hearsay rule for the victim’s out-of-court
statement describing the offense when offered into evidence through the testimony of the first adult
the victim told of the offense. See id. § 2; Sanchez, 354 S.W.3d at 484. One of the procedural
provisions of the statute is that the trial court must conduct a hearing outside the presence of the jury
to determine the reliability of the outcry statement. See Tex. Code Crim. Proc. art. 38.072, § 2(b)(2).
The hearing requirement is mandatory and must be complied with. Long, 800 S.W.2d at 547; see
Sanchez, 354 S.W.3d at 484.
Appellant is correct in that the trial court did not conduct the requisite hearing
pursuant to the statute. However, at trial, appellant did not object to the failure of the trial court to
conduct the hearing. Nor did he object to the admission of the outcry statements through the
testimony of the outcry witnesses designated by the State in its notice. Preservation of error is a
systemic requirement on appeal. Blackshear v. State, 385 S.W.3d 589, 590 (Tex. Crim. App. 2012);
Boston v. State, 373 S.W.3d 832, 841 (Tex. App.—Austin 2012), aff’d, 410 S.W.3d 321 (Tex. Crim.
App. 2013); see Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014). A reviewing
court should not address the merits of an issue that has not been preserved for appeal. Blackshear,
385 S.W.3d at 590; Wilson v. State, 311 S.W.3d 452, 473–74 (Tex. Crim. App. 2010); Boston,
16 373 S.W.3d at 841. To preserve a complaint for appellate review, a party must have presented to
the trial court a timely request, objection, or motion that states the specific grounds for the desired
ruling if they are not apparent from the context. Tex. R. App. P. 33.1(a)(1); see Clark v. State,
365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
Because appellant did not object to the trial court’s failure to conduct the hearing at
trial or the admission of the outcry statements, he has failed to preserve this complaint for appellate
review. See Citizen v. State, No. 13-14-00379-CR, 2015 WL 513367, at *7 (Tex. App.—Corpus
Christi Feb. 5, 2015, no pet.) (mem. op., not designated for publication) (“A complaint regarding
the failure to hold a reliability hearing under article 38.072 is forfeited if it is not raised at trial
and if there is no objection to the outcry testimony.”); Williams v. State, No. 02-10-00118-CR,
2011 WL 1601290, at *6 (Tex. App.—Fort Worth Apr. 28, 2011, pet. ref’d) (mem. op., not
designated for publication) (“[A] complaint regarding the lack of a reliability hearing under article
38.072 is forfeited if it is not raised at trial and if there is no objection to the outcry testimony.”); see
also Moore v. State, 233 S.W.3d 32, 37 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (concluding
appellant’s substantial rights were not affected by trial court’s failure to conduct article 38.072
hearing); Laredo v. State, 194 S.W.3d 637, 640–41 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d) (concluding complaint as to outcry testimony not preserved for appellate review).
Accordingly, we overrule appellant’s second point of error.
17 CONCLUSION
Having rejected appellant’s claim of ineffective assistance of counsel and concluding
that appellant failed to preserve any alleged error relating to the trial court’s failure to conduct a
reliability hearing pursuant to the outcry statute, we affirm the trial court’s judgments of conviction.
__________________________________________ Melissa Goodwin, Justice
Before Chief Justice Rose, Justices Goodwin and Field
Affirmed
Filed: August 26, 2015
Do Not Publish