NUMBER 13-12-00226-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

JORGE LONGORIA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 357th District Court 

of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza 

Memorandum Opinion by Justice Rodriguez

Appellant Jorge Longoria challenges his convictions for one count of continuous 

sexual abuse of M.L., a young child, and for two counts of indecency with a child.1 See

TEX. PENAL CODE ANN. §§ 21.02(b) (West Supp. 2011), 21.11 (West 2011). The trial 

 

1

The jury found Longoria not guilty on three other counts.
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court assessed punishment at thirty year’s imprisonment for continuous sexual abuse of a 

young child and ten years for each of the other convictions, with the sentences to run 

concurrently. By his first four issues, Longoria complains that the trial court abused its 

discretion by admitting (1) hearsay statements of the child through the father’s testimony; 

(2) bolstering-witness testimony; (3) certain expert testimony; and (4) a medical report 

that contained hearsay. By his remaining four issues, Longoria contends that (5) the trial 

court failed to include in the appellate record documents that it reviewed in camera; (6) his 

counsel provided ineffective assistance; (7) the jury charge violated his right to a 

unanimous verdict; and (8) the trial court failed to grant a mistrial on allegations of 

prosecutorial misconduct. We affirm.

I. ADMISSION OF EVIDENCE2

A. STANDARD OF REVIEW AND APPLICABLE LAW

We review a trial court's decision to admit evidence, including expert witness 

testimony, under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 

736 (Tex. Crim. App. 2011); Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002).

"A timely and specific objection is required to preserve error for appeal." Luna v. 

State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008); see TEX. R. APP. P. 33.1(a)(1)(A). 

Appellate arguments must correspond with the objection at trial. Gallo v. State, 239 

S.W.3d 757, 768 (Tex. Crim. App. 2007). “An objection is timely if it is made as soon as 

the ground for the objection becomes apparent, i.e., as soon as the defense knows or 

should know that an error has occurred.” Grant v. State, 345 S.W.3d 509, 512 (Tex. 

 

2

Because this is a memorandum opinion and the parties are familiar with the facts, we will not 

recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for 

it. See TEX. R. APP. P. 47.4.
3

App.—Waco 2011, pet. ref’d) (citing Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 

2008)). 

B. Outcry-Witness Testimony

By his first issue, Longoria contends that the trial court erred in admitting hearsay 

statements of M.L. through her father, whom Longoria claims was a second, improper 

out-cry witness. Longoria argues that the admission of this testimony violated article 

38.072, section 2(a) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM.

PROC. ANN. art. 38.072, § 2(a) (West Supp. 2011). However, Longoria did not object to 

the father’s testimony under either article 38.072, section 2(a) or the general rule against 

hearsay. See Luna, 268 S.W.3d at 604; Grant, 345 S.W.3d at 512; see also TEX. R. APP.

P. 33.1(a)(1)(A). Longoria failed to preserve this issue for our review. We therefore 

overrule his first issue.

C. Bolstering-Witness Testimony

In his second issue, Longoria contends that the State intentionally called M.L.’s 

mother to attack M.L.’s character for truthfulness in order to precipitate otherwise 

improper, bolstering-witness testimony later at trial. Yet Longoria did not object to any 

witness’s testimony on the basis of improper bolstering, such that the trial court was 

informed of the basis of his complaint. See Luna, 268 S.W.3d at 604; Grant, 345 S.W.3d 

at 512; see also TEX. R. APP. P. 33.1(a)(1)(A). Longoria has not preserved this complaint 

for our review. We overrule Longoria’s second issue.

D. Expert Witness Testimony

In the section of his brief listing the issues presented on appeal and in the opening 

paragraph of his third issue, Longoria contends that his conviction should be set aside 
4

because expert testimony was introduced in violation of Texas Rule of Evidence 704. 

See TEX. R. EVID. 704 (“Testimony in the form of an opinion or inference otherwise 

admissible is not objectionable because it embraces an ultimate issue to be decided by 

the trier of fact.”). Yet Longoria did not provide record cites for the expert testimony 

about which he complains. See McCarthy v. State, 65 S.W.3d 47, 49 n.2 (Tex. Crim. 

App. 2001); see also TEX. R. APP. P. 38.1(i). And although Longoria cited to rule of 

evidence 704, Schultz v. State, Jordan v. State, and Decker v. State for general 

propositions of law related to expert witness testimony, he did not apply his cited authority 

to the facts in support of his arguments that: (1) the testimony was offered to supplant 

the determination of the jury and not to aid the jury; and (2) expert Sister Mary Lucy was 

not qualified to give any testimony because she had never met M.L., yet testified as to the 

child’s demeanor and ultimate believability in violation of Longoria’s rights to a fair trial. 

See Schultz, 957 S.W.2d 52, 59–74 (Tex. Crim. App. 1997) (en banc); Jordan, 928 

S.W.2d 550, 553–54 (Tex. Crim. App. 1996); Decker, 894 S.W.2d 475, 479 (Tex. 

App.—Austin 1995, pet. ref’d) (per curiam). Longoria simply did not provide substantive 

analysis explaining how any expert testimony in this case is in violation of rule 704 or any 

other evidentiary rule. See McCarthy, 65 S.W.3d at 49 n.2; see also TEX. R. APP. P.

38.1(i). We conclude that Longoria’s third issue is inadequately briefed and presents 

nothing for review. We overrule the third issue.

E. Strayer’s Medical Report

By his fourth issue, Longoria contends that the trial court abused its discretion 

when it admitted medical records, which contained representations that were in violation 

of his Sixth Amendment right of confrontation. Goldie Strayer testified that she 
5

conducted a sexual assault examination on M.L. in May of 2009 and prepared a medical 

report based on her observations. The trial court admitted this medical report over 

Longoria’s hearsay objection. But a hearsay objection does not preserve error on the 

confrontation clause ground. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 

2005) (citing Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004)); see Gallo,

239 S.W.3d at 768. Claims under the confrontation clause require a timely and specific 

objection to preserve error. Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010). 

Longoria has not preserved error on this issue. We overrule the fourth issue.

II. APPELLATE RECORD

In his fifth issue, Longoria contends that we should set aside his conviction 

because the trial court improperly failed to include Brady materials in the record on 

appeal. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the suppression by 

the prosecution of evidence favorable to an accused upon request violates due process 

whether the evidence is material either to guilt or to punishment, irrespective of the good 

faith or bad faith of the prosecution”). Although Longoria does not indicate what records 

the trial court should have included in the appellate record, the State describes the 

records as notes made by M.L.’s counselor during the summer of 2009.3 The trial court 

conducted an in camera review of the treatment notes and determined that they were 

confidential and not subject to disclosure under Brady. See id. Longoria made a formal 

offer of proof with regard to these records.

Nonetheless, the complained-of records are not contained in the record on appeal. 

 

3

From our review of the record, the counselor’s notes may have also included sessions that were 

held beginning again in the summer of 2010.
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Longoria did not request that these materials be sealed and included in the record. 

Thus, Longoria has waived any possible error by failing to secure the inclusion of the 

counselor’s notes in the record. See Villarreal v. State, 576 S.W.2d 51, 65 (Tex. Crim.

App. 1978) (en banc) (determining that the accused waived possible Brady error by failing 

to secure the inclusion of prosecutor's file in the appellate record); see also Shaw v. State, 

No. 03-08-00506-CR, 2009 WL 1896068, at *12 (Tex. App.—Austin July 3, 2009, no pet.)

(mem. op., not designated for publication). We overrule this fifth issue.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

In his sixth issue, Longoria asserts that his conviction should be set aside because 

he received ineffective assistance of counsel at trial. Longoria argues that 

ineffectiveness was demonstrated by the following actions or inactions of his trial counsel:

(1) fail[ure] to adequately protect [his] rights by insisting on discovery 

requests; (2) fail[ure] to object to the introduction of expert hearsay 

evidence in violation of [his] rights; (3) fail[ure] to object to hearsay 

testimonial statements by the nurse on reports; (4) [actions that opened] the 

door to the admission of hearsay evidence during the guilt/innocence phase 

thereby destroying [his credibility] and prejudicing his defense; and (5) 

fail[ure] to object to hearsay improper statements.

Longoria also asserts that counsel was ineffective because he “never properly 

objected or sought to a [sic] have a limiting instruction on extraneous evidence [in order to 

preserve error on appeal] and further did not properly object to the introduction of exhibits 

that were cumulative.” Finally, Longoria complains that counsel’s assistance was 

ineffective because counsel never objected to a nurse’s “report that contained findings 

that were testimonial in nature,” an omission Longoria claims was in violation of the 

principles established in Crawford v. Washington. See 541 U.S. 36, 57–60 (2004) 

(holding that, without exception, testimonial hearsay statements of witnesses absent from 
7

trial are admissible over a Sixth Amendment Confrontation Clause objection only where 

the declarant is unavailable and where the defendant has had a prior opportunity to 

cross-examine the declarant).

A. Applicable Law and Standard of Review

A claim of ineffectiveness of counsel requires an appellant to show (1) that 

counsel's trial performance was so deficient that counsel failed to function as the 

“counsel” guaranteed under the Sixth Amendment to the Federal Constitution; and (2) 

that counsel's deficient performance prejudiced the appellant, depriving appellant of a fair 

trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Lopez v. State, 343 S.W.3d 

137, 143–44 (Tex. Crim. App. 2011). An appellant bears the burden of proving by a 

preponderance of the evidence that his counsel was ineffective. Thompson v. State, 9 

S.W.3d 808, 813 (Tex. Crim. App. 1999).

“Deficient performance means that ‘counsel made errors so serious that counsel 

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment.’”4 Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting 

Strickland, 466 U.S. at 687). Appellant must overcome the strong presumption that 

counsel's conduct was constitutionally adequate, falling within the wide range of 

reasonable professional assistance, and that his actions could be considered sound trial 

strategy or the product of a tactical decision. See Strickland, 466 U.S. at 689; State v. 

Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (en banc); Jaynes v. State, 216 

S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). An allegation of 

 

4

Although Longoria’s argument focuses on the prejudice prong of Strickland, it is Strickland’s first 

prong that is dispositive of this issue, and so we will only set out the law applicable to counsel’s performance 

and its deficiency, if any. See TEX. R. APP. P. 47.1; Strickland v. Washington, 466 U.S. 668, 687 (1984).
8

ineffectiveness must be firmly founded in the record, and the record must affirmatively 

demonstrate the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim.

App. 2002); Thompson, 9 S.W.3d at 814 n.6.

A reviewing court will not second-guess legitimate tactical decisions made by trial 

counsel. Morales, 253 S.W.3d at 696. We cannot speculate beyond the record 

provided; rather, we must generally presume that the actions were taken as part of a 

strategic plan for representing the client. Young v. State, 991 S.W.2d 835, 837–38 (Tex.

Crim. App. 1999) (en banc). On a silent record, this Court can find ineffective assistance 

of counsel only if the challenged conduct was so outrageous that no competent attorney 

would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005).

B. Discussion

1. Briefing

After setting out general propositions of law regarding ineffective assistance of 

counsel, except for his allegations regarding testimonial evidence, Longoria directs us to 

nothing in the record to support his contentions and makes no supporting arguments. It 

is not the duty of this Court to search through the record and identify errors. See Perez v. 

State, 41 S.W.3d 712, 716 (Tex. App.—Corpus Christi 2001, no pet.); see also Valadez v. 

Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.) (“An appellate court has 

no duty—or even right—to perform an independent review of the record and applicable 

law to determine whether there was error. Were we to do so . . . we would be 

abandoning our role as neutral adjudicators and become an advocate for that party.”); 

McCown v. State, No. 13-00-598-CR, 2001 WL 34394323, at *4 (Tex. App.—Corpus 
9

Christi Aug. 16, 2001, no pet.) ( not designated for publication). Rather, it is Longoria's 

duty to identify counsel’s errors with record citations and to provide supporting arguments 

in his brief. See Perez, 41 S.W.3d at 716; see also McCown, 2001 WL 34394323, at *4. 

An assertion without argument, authority, or citation to the record presents nothing for our 

review. See TEX. R. APP. P. 38.1(h); McFarland v. State, 928 S.W.2d 482, 512 (Tex. 

Crim. App. 1996) (en banc) (per curiam); Perez, 41 S.W.3d at 716. Except for his 

contention regarding counsel’s alleged failure to object to the admission of testimonial 

evidence, we conclude that Longoria’s general allegations regarding ineffective 

assistance of counsel are inadequately briefed. See Perez, 41 S.W.3d at 716.

2. Testimonial Evidence

Regarding Longoria’s contention that trial counsel failed to object to testimonial 

statements contained in Strayer’s sexual-assault medical examination report, Longoria 

claims that he was prejudiced by counsel’s failure to object to the findings in this report 

that were testimonial in nature. More specifically, Longoria asserts that the “testimony of 

the State’s nurse expert witness went beyond a sterile recitation but [was] a subjective 

narration of events[ ] related to the person’s potential guilt.” He argues that “[t]hus the 

introduction of testimony by a nurse which was not subject to cross-examination was in 

violation of the Defendant’s right to confrontation.” Longoria claims that counsel “did not 

have an adequate preparation of the facts surrounding the expert witness and their [sic] 

reports and as a result prejudicial evidence came in that resulted in a conviction and thus 

[he] received ineffective assistance of counsel and the conviction should be set aside.”

The record here is silent as to why trial counsel failed to object to the testimonial 

testimony; it does not affirmatively demonstrate the alleged ineffectiveness. See Bone, 
10

77 S.W.3d at 835; Thompson, 9 S.W.3d at 814 n.6. Longoria could have supplemented 

the record through a hearing on a motion for new trial, but he did not produce additional 

information about trial counsel's reasons for allowing testimony regarding Strayer’s 

sexual-assault medical examination report. See Lopez, 343 S.W.3d at 143–44. So we 

must presume that counsel's actions were taken as part of a strategic plan for 

representing Longoria. See Morales, 253 S.W.3d at 696; Young, 991 S.W.2d at 837–38; 

Jaynes, 216 S.W.3d at 851. And Longoria has failed to establish that counsel’s 

performance was defective when he did not object to the hearsay testimonial statements 

contained in Strayer’s sexual-assault medical examination report. See Ex parte Napper, 

322 S.W.3d at 246 (quoting Strickland, 466 U.S. at 687). He has not met his burden 

under the first prong of Strickland. See Thompson, 9 S.W.3d at 813. Because Longoria

failed to meet his burden on the first prong of Strickland, we need not consider the 

requirements of the second prong. See TEX. R. APP. P. 47.1; Strickland, 466 U.S. at 687. 

Moreover, nothing in this record suggests that counsel’s assistance was so outrageous 

that no competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at

392. We overrule Longoria’s sixth issue.

IV. UNANIMOUS VERDICT

Longoria asserts by his seventh issue that the trial court failed to instruct the jury 

properly on the issue of continuous sexual abuse of a young child.5 See TEX. PENAL 

CODE ANN. § 21.02(d). Longoria claims that the trial court denied his requested 

instruction and violated his fundamental right to a unanimous jury verdict.

 

5

To the extent Longoria argues sufficiency of the evidence to support this conviction, we conclude 

that any sufficiency argument has been inadequately briefed. See TEX. R. APP. P. 38.1(i).
11

A. The Law

A person commits the offense of continuous sexual abuse of a young child if, 

during a time period of thirty or more days, that person commits two or more acts of 

sexual abuse against a child. Id. An act of sexual abuse means “any act that is in 

violation of . . . indecency with a child under Section 21.11(a)(1) . . . [or] . . . aggravated 

sexual assault under Section 22.021.” Id. § 21.02(c).

On the issue of unanimity, the penal statute provides that the jury is “not required to 

agree unanimously on which specific acts of sexual abuse were committed by the 

defendant or the exact date when those acts were committed.” Id. § 21.02(d). And 

while the jury need not be unanimous on the specific acts of sexual abuse alleged in the 

indictment, the jury must “agree unanimously that the defendant, during a period that is 

30 or more days in duration, committed two or more acts of sexual abuse.” Id.

B. Discussion

Count one of the indictment charged Longoria with continuous sexual abuse of a 

young child under section 21.02 of the penal code. See id. It alleged that Longoria 

committed two or more acts of sexual abuse against M.L. during a period that was thirty 

days or more in duration, from September 1, 2007 to February 1, 2009. See id. The 

State alleged that, during that period of time, Longoria committed at least two of four acts 

of sexual abuse referenced in the indictment.

The following paragraph four of the court’s charge instructed the jury as to which 

elements of the offense the jury had to be unanimous in order to find Longoria guilty on 

court one:

In reference to count I, you are instructed that members of the jury are not 
12

required to agree unanimously on which acts of sexual abuse, if any, were 

committed by the defendant or the exact date when those acts were 

committed, if any. The jury must agree unanimously that the defendant, 

during a period that was 30 or more days in duration, committed two or 

more acts of sexual abuse as that term has been previously defined.

During the charge conference, defense counsel objected to the jury charge on the ground 

that it invited a non-unanimous verdict and, therefore, violated his constitutional and 

statutory rights. The trial court overruled his objection.

In Reckart v. State, this Court disagreed with the premise underlying Reckart's 

argument—“that the statute [section 21.02] allows a non-unanimous verdict on each 

element of the offense.” 323 S.W.3d 588, 600 (Tex. App.—Corpus Christi 2010, pet. 

ref’d). Instead, we concluded that section 21.02 does not allow for a non-unanimous 

verdict on the essential elements of the offense. Id. at 600–01. Our sister courts agree 

with this conclusion, holding that section 21.02 does not allow for a non-unanimous 

verdict on the essential elements of the offense and does not violate the unanimity 

provision of the Texas Constitution. Render v. State, 316 S.W.3d 846, 857–58 (Tex.

App.—Dallas 2010, pet. ref’d); see McMillan v. State, 388 S.W.3d 866, 871–72 (Tex.

App.—Houston [14th Dist.] 2012, no pet.); Kennedy v. State, 385 S.W.3d 729, 731–32 

(Tex. App.—Amarillo 2012, pet. ref'd); Casey v. State, 349 S.W.3d 825, 829–30 (Tex.

App.—El Paso 2011, pet. ref'd); Martin v. State, 335 S.W.3d 867, 872–73 (Tex.

App.—Austin 2011, pet. ref'd); see also Perez v. State, No. 05-12-00377-CR, 2013 WL 

4568296, at *5–7 (Tex. App.—Dallas Aug. 26, 2013, no pet.) (mem. op., not designated 

for publication). Likewise, dispensing with jury unanimity on the underlying acts of 

sexual abuse does not violate the constitutional right to a unanimous jury verdict. See 

Render, 316 S.W.3d at 857–58; Reckart, 323 S.W.3d at 600–01; see also Perez, 2013 
13

WL 4568296, at *6.

In this case the trial court instructed the jury in accordance with the statute. The 

charge correctly instructed the jury that section 21.02 did not allow for a non-unanimous 

verdict on the essential elements of the offense. See Reckart, 323 S.W.3d at 600–01; 

see also TEX. PENAL CODE ANN. § 21.02(d). And consistent with section 21.02(d), the 

charge properly instructed the jury that it did not require the jurors to agree unanimously 

as to the specific acts Longoria committed. See TEX. PENAL CODE ANN. § 21.02(d). We 

conclude that the charge did not violate Longoria’s right to a unanimous verdict, and the 

trial court did not err in so instructing the jury. We overrule the seventh issue.

V. PROSECUTORIAL MISCONDUCT

In his eighth issue, Longoria contends that his conviction should be set aside 

because the trial court failed to grant a mistrial on allegations of prosecutorial misconduct.

In support of this issue, Longoria complains that the Victim’s Assistance Coordinator 

allegedly encouraged M.L. to provide an “I don’t remember” response when she could not 

recall certain events or if she got in trouble and to cry so that her allegation of sexual 

abuse could be more believable to the jury. 

“The proper method of preserving error in cases of prosecutorial misconduct is to 

(1) object on specific grounds, (2) request an instruction that the jury disregard the 

comment, and (3) move for a mistrial.” Ajar v. State, 176 S.W.3d 554, 565–67 (Tex. App. 

2004) (citing Penury v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995) (en banc) (per 

curiam); Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993) (en banc)). In this 

case, Longoria made no objection on the basis of prosecutorial misconduct in the trial 

court to the alleged error. By failing to object on this theory at trial, Longoria has 
14

preserved nothing for our review. See Perkins v. State, 902 S.W.2d 88, 96 (Tex. 

App.—El Paso 1995, writ ref'd). We overrule Longoria’s eighth issue.

VI. CONCLUSION

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 17th

day of October, 2013.