      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

following exchange:


       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




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