Armando Rodriguez Zuniga v. State ( 2015 )

AFFIRMED and Opinion Filed June 5, 2015
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00078-CR
ARMANDO RODRIGUEZ ZUNIGA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause No. F-1252672-X
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Lang
A jury convicted Armando Rodriguez Zuniga of the aggravated sexual assault of his six-
year old niece and assessed punishment at ninety-nine years’ confinement and a $10,000 fine.
In a single issue, Zuniga asserts the trial court abused its discretion in designating the forensic
interviewer as the outcry witness and allowing her to testify to the niece’s out-of-court
statements concerning the assault. We affirm the trial court’s judgment.
I. BACKGROUND
Although convicted of a single assault, Zuniga was charged with continuous sexual abuse
of a young child.1 See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2014). Zuniga contends
the trial court erred in designating the forensic interviewer, Jesse Gonzalez, as the outcry witness
when the niece reported the abuse to her mother first. Pursuant to Texas Code of Criminal
Procedure 38.072, the State provided notice to Zuniga that it intended to call both the mother and
Gonzalez to testify concerning the niece’s “outcry.” See TEX. CODE CRIM. PROC. ANN. art.
38.072, § 2 (b)(1) (West Supp. 2014). At trial, however, the State and Zuniga agreed Gonzalez
was the proper outcry witness. The trial court conducted a hearing outside the jury’s presence to
determine whether the niece’s outcry statements to Gonzalez were reliable and, finding they
were, designated Gonzalez the outcry witness. Then, without objection, Gonzalez testified to the
niece’s outcry statements.
II. OUTCRY WITNESS DESIGNATION
In challenging the trial court’s designation of Gonzalez as the outcry witness, Zuniga
notes the only testimony offered in support of that designation was Gonzalez’s “affirmation” at
the hearing that “she understood herself to be the ‘first person [the niece] told all of the details
and the extent of the sexual abuse.’” Zuniga contends “being the first person . . . ‘told all of the
details and the extent of the sexual abuse’” does not necessarily qualify a witness as an outcry
witness, and the trial court needed, but did not receive, additional information to determine the
proper outcry witness. In response, the State argues, in part, Zuniga failed to preserve any error
because he did not object at trial and affirmatively agreed to Gonzalez’s designation.
1
The State abandoned this charge at trial and proceeded on the lesser-included offense of which he was convicted. See TEX. PENAL CODE
ANN. § 22.021(a)(1)(B),(2)(B) (West Supp. 2014); Soliz v. State, 353 S.W.3d 850, 852-53 (Tex. Crim. App. 2011) (aggravated sexual assault of
child is lesser-included offense of continuous sexual abuse of child).
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A. Applicable Law and Standard of Review
In child sexual abuse cases, designation of a witness as an outcry witness allows the
witness to testify to the child’s otherwise inadmissible hearsay or out-of-court statements
describing the abuse. For the “outcry” statement to be admissible, the witness must be the first
adult the child told of the offense and the trial court must find, following a hearing, that the
statement is reliable “based on time, content, and circumstances.” See TEX. CODE CRIM. PROC.
ANN. art. 38.072, § 2; Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). The trial
court’s outcry witness designation, and resulting admission of hearsay testimony, is reviewed for
abuse of discretion. Rodgers v. State, 442 S.W.3d 547, 552 (Tex. App.—Dallas 2014, pet. ref’d).
No review is necessary, however, unless a specific complaint about the witness designation or
the admission of the outcry statement is made or preserved at trial. See TEX. R. APP. P.
33.1(a)(1); Watts v. State, 856 S.W.2d 246, 247 (Tex. App.—Beaumont 1993, no pet.).
B. Application of Law to Facts
Although Zuniga complains of the trial court’s designation of Gonzalez as the outcry
witness, he agreed prior to her testimony that she was the proper outcry witness and did not
object to the designation or her testimony at any point after that. Relying on Laredo v. State, 194
S.W.3d 637, 640 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d), he argues an objection is
necessary only when the trial court fails to hold a hearing to determine the reliability of the
child’s outcry statement and, because the trial court held a hearing here, no objection was
necessary. Laredo, however, does not stand for that proposition. In Laredo, the court of appeals
concluded appellant’s complaint, that the trial court’s failure to conduct a “reliability” hearing
rendered the court’s designation of the child’s mother as the outcry witness improper, was not
preserved for review because appellant did not raise the complaint at trial. Id. The conclusion is
premised on the failure of appellant to complain at trial, not the trial court’s failure to conduct a
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hearing, and is consistent with the rule on preservation of error. We conclude Zuniga was
required to object at trial. Because he failed to do so, his complaint is not preserved for review.
See TEX. R. APP. P. 33.1(a)(1); Watts, 856 S.W.2d at 247. We decide his sole issue against him.
III. CONCLUSION
We affirm the trial court’s judgment.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
Do Not Publish
TEX. R. APP. 47
140078F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ARMANDO RODRIGUEZ ZUNIGA, On Appeal from the Criminal District Court
Appellant No. 6, Dallas County, Texas
Trial Court Cause No. F-1252672-X.
No. 05-14-00078-CR V. Opinion delivered by Justice Lang. Justices
Brown and Whitehill participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgment.
Judgment entered this 5th day of June, 2015.
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