AFFIRMED; Opinion Filed February 21, 2017.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-15-01328-CR

                         ROY GUADALUPE CARDINAS, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 2
                                   Dallas County, Texas
                            Trial Court Cause No. F13-62250-I

                              MEMORANDUM OPINION
                              Before Justices Lang, Myers, and Evans
                                     Opinion by Justice Evans
       A jury found appellant Roy Guadalupe Cardinas guilty of the offense of aggravated

sexual assault of a child under fourteen and assessed punishment at thirty years’ imprisonment.

In three issues on appeal, appellant generally asserts his conviction should be reversed because

the trial court abused its discretion in admitting testimony from an improper outcry witness, and

failed to conduct a “meaningful” article 38.072 hearing. For the reasons that follow, we affirm

the trial court’s judgment.

                                        BACKGROUND

       Appellant is the father of complainant and her sister who were, respectively, eight and

seven years old at the time of trial in October of 2015. On or about October 21, 2013, the girls

stayed the night with their maternal grandmother. Grandmother testified that she heard the girls
arguing and went into the bedroom to investigate. She became concerned upon learning what the

argument was about, put her cellphone on record, and talked to the girls. Grandmother then gave

her cellphone to the girls’ mother to watch the recording. Mother testified she tried to watch it,

but could only watch part of the recording. Mother saw Sister “pretending to hump a pillow”

and Grandmother ask, “why is [Sister] doing that?” to which complainant replied, “Because

that’s what Daddy does to her.” She also heard Grandmother ask “What else did your dad do to

you?” Mother called the police a few days later. The cellphone recording was erased two or

three days after it was recorded by another of Grandmother’s adult daughters. Mother never

talked to the girls directly about what happened.

       The State indicted appellant for aggravated sexual assault of a child under 14. The

indictment accused appellant of—

       unlawfully then and there intentionally and knowingly cause the contact and
       penetration of the female sexual organ of [complainant], a child, who was not
       then the spouse of defendant, by an object, to-wit: the sexual organ of said
       defendant, and, at the time of the offense, the child was younger than 14 years of
       age….

At trial at a hearing outside the jury’s presence, Grandmother testified that what caused her

concern was complainant’s statement that Sister would not stop doing a movement back and

forth on the bed, mimicking a sex act. When Grandmother asked why she was doing that, Sister

responded “That’s what Daddy does to us.” Grandmother asked Sister what else Daddy did to

them, to which she responded, “he does that on our belly” and “then he cleans himself with a rag,

with a towel.” When Grandmother asked complainant if appellant had done anything to her, she

responded, “He tried to do it to me but I told him to stop.” The girls did not give any other

details to Grandmother and they never talked about it again.

       A forensic interviewer at the Dallas Children’s Advocacy Center testified outside the

presence of the jury that she was the first person the girls told about the details of the offense.


                                               –2–
The interviewer stated that complainant explained that appellant’s penis touched her vagina with

her underwear on.

        The State argued that the forensic interviewer was the appropriate outcry witness because

the girls did not provide any details of the alleged offense committed other than inappropriate

touching when they spoke with Grandmother or their own mother. Appellant objected to the

designation of the interviewer as the outcry witness arguing that Grandmother and Mother were

made aware of facts and elements that could result in criminal charges before the interviewer

spoke with the girls.

        The trial court ruled that the forensic interviewer was the outcry witness for complainant.

The trial court also overruled appellant’s objection to interviewer’s testimony about outcry

statements made by Sister. The doctor who performed a physical exam on the girls testified that

both girls had a white band or area directly in front of their hymens which was not normal and

indicated a healed injury and could be the result of penetration. The defense called complainant

and Sister as witnesses. When questioned whether appellant “ever touched your private parts

with his private part,” complainant responded “yes.” Sister testified that appellant never touched

her in the places where she goes to the bathroom and she never saw appellant touch complainant

in those places. Appellant was convicted of the offense of aggravated sexual assault of a child

under fourteen and sentenced to thirty years’ imprisonment. This appeal followed.

                                             ANALYSIS

        In his first and second issues, appellant complains that Grandmother, rather than the

forensic interviewer, was the proper outcry witness for the girls because Grandmother was the

first person the girls told of the alleged abuse.

        Article 38.072 makes certain outcry statements by certain abuse victims admissible

despite the hearsay rule. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2016). To

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be an admissible outcry statement, the victim’s statement must describe the alleged offense in

some discernable way that is more than words which give a general allusion that something in

the area of child abuse was going on. Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App.

1990) (En Banc).     In general, the proper outcry witness is the first adult to whom the

complainant describes “how, when, and where” the abuse occurred. Reyes v. State, 274 S.W.3d

724, 727 (Tex. App.—San Antonio 2008, pet. ref’d). When the initial statement conveys nothing

more than a general allusion of child abuse, the receiver of a subsequent detailed statement

should be designated as the outcry witness, even though this later recipient was technically not

the first adult to whom the child revealed the abuse. See Thomas v. State, 309 S.W.3d 576, 579

(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). The trial court has broad discretion in ruling

whether a witness is a proper outcry witness and that ruling will not be disturbed absent an abuse

of discretion. Garcia, 792 S.W.2d at 92.

       We conclude that the trial court did not err by concluding that the forensic interviewer

was the proper outcry witness for complainant. As noted above, Grandmother testified that when

she asked Sister why she was doing a particular act on the bed that Grandmother found

concerning, Sister replied “that’s what Daddy does to us.”           When Grandmother asked

complainant if appellant had done anything to her, she said “He tried to do it to me, but I told

him to stop.” Because complainant did not disclose any specific details to Grandmother about

appellant’s sexual organ contacting or penetrating complaint’s sexual organ—the charged

offense—complainant’s statements to her were nothing more than a general allusion to that

something in the area of sexual abuse was occurring and not a clear description of the offense

charged as required by article 38.072. See Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas

1999, pet. ref’d). Complainant’s statements to Grandmother were in stark contrast to those she

gave to the forensic interviewer where complainant explained that appellant’s penis touched her

                                               –4–
vagina with her underwear on.       Accordingly, the trial court did not abuse its discretion in

admitting the forensic interviewer’s testimony as the outcry witness. See id.

       For the same reasons, we conclude that the trial court did not err in admitting the forensic

interviewer’s testimony as Sister’s outcry witness. The State had given notice of its intent to use

numerous extraneous offenses, including that appellant “made contact with [Sister’s sexual

organ] with [appellant’s] hand.” When Grandmother asked Sister why she was doing the action

causing concern, Sister explained “That’s what Daddy does to us.” Sister also said appellant

“does that on our belly” and pointed to her stomach. She stated, “Then he cleans himself with a

rag, with a towel.”     Grandmother never discussed the matter further with Sister.          These

statements do not describe the alleged offense in a discernable manner as required to be a proper

outcry statement.     Instead, Sister’s statements to the forensic interviewer describing that

appellant had touch her “front” with his hands with additional details provided a clear description

of how and where appellant inappropriately touched her. Accordingly, the trial court did not

abuse its discretion in admitting the forensic interviewer’s testimony as Sister’s outcry witness.

We resolve appellant’s first and second issues against him.

       In his third issue, appellant contends the trial court failed to conduct a meaningful hearing

under article 38.072 before the forensic interviewer was permitted to testify as an outcry witness

for Sister. He argues specifically that the trial court’s brief hearing violated the mandatory

requirements that the trial court conduct a hearing and make appropriate findings.

       Error preservation is a systemic requirement on appeal. See Ford v. State, 305 S.W.3d

530, 532 (Tex. Crim. App. 2009). Accordingly, we should not address the merits of an issue that

has not been preserved for appeal. Id. Our review of the record compels us to conclude that

appellant did not preserve any complaint about the lack of, or nature of, the hearing relating to

whether the forensic interviewer was the proper outcry witness for Sister. In the first hearing

                                               –5–
outside the jury’s presence, the forensic interviewer testified that both girls told her about the

nature and details of the abuse. She then recounted what complainant had told her about the

abuse. Likewise, Grandmother testified outside the presence of the jury as to what the girls told

her. After hearing Grandmother’s testimony, the trial court stated “I believe that makes [the

forensic interviewer], if she heard the details, the outcry witness.”

        After a break, appellant’s attorney generally objected to the forensic interviewer as the

outcry witness. The trial court noted the objection. Ultimately, the forensic interviewer testified

before the jury as to what complainant told her. The jury then was excused for lunch and the

court and counsel had a conference off the record. On the record and outside the presence of the

jury, the State’s attorney questioned whether the forensic interviewer had also met with Sister

about the abuse that had occurred. The trial court stopped the questioning stating, “I’d rather do

that later in case you’re able to prove to me that she is the outcry witness.” The court then

recessed for lunch. Upon return from the lunch break and outside the presence of the jury,

appellant’s attorney objected to the outcry statements made by Sister to the forensic examiner.

The trial court overruled the objection and the forensic examiner testified before the jury as to

her conversation with Sister.1 The trial court granted appellant’s running objection to her

testimony.

        Appellant only objected to the designation of the forensic interviewer as the outcry

witness for Sister. Because appellant did not complain about the nature of or adequacy of the

hearing below as it related to Sister’s outcry witness, he has not preserved this issue for appellate

review. See TEX. R. APP. P. 33.1; Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2014)

(En Banc) (issue on appeal not preserved when complaint does not comport with trial objection).


    1
     Appellant’s objection in its entirety was “I would object. The Defense would object to the outcry statement
made by [Sister] to [forensic interviewer] at this point.”


                                                     –6–
       We resolve all three of appellant’s issues against him. Accordingly, we affirm the trial

court’s judgment.




                                                   /David W. Evans/
                                                   DAVID EVANS
                                                   JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
151328F.U05




                                             –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

ROY GUADALUPE CARDINAS,                             On Appeal from the Criminal District Court
Appellant                                           No. 2, Dallas County, Texas
                                                    Trial Court Cause No. F13-62250-I
No. 05-15-01328-CR         V.                       Opinion delivered by Justice Evans, Justices
                                                    Lang and Myers participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 21st day of February, 2017.




                                             –8–
