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 sixyear 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.
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I. BACKGROUND

Although convicted of a single assault, Zuniga was charged with continuous sexual abuse 

of a young child.1See 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.

Do Not Publish

TEX. R. APP. 47

140078F.U05

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ARMANDO RODRIGUEZ ZUNIGA, 

Appellant

No. 05-14-00078-CR 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.

Opinion delivered by Justice Lang. Justices 

Brown and Whitehill participating.

Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgment.

Judgment entered this 5th day of June, 2015.