Court of Appeals
Tenth Appellate District of Texas
10-25-00025-CR
Rodolfo Villarreal,
Appellant
v.
The State of Texas,
Appellee
On appeal from the
13th District Court of Navarro County, Texas
Judge James E. Lagomarsino, presiding
Trial Court Cause No. D42177-CR
JUSTICE HARRIS delivered the opinion of the Court.
MEMORANDUM OPINION
A jury convicted Rodolfo Villarreal of the offense of aggravated sexual
assault of a child, and the trial court assessed punishment at life in prison. We
affirm the trial court’s judgment.
BACKGROUND
J.B. lived with her grandmother, Micaela Cano, whom J.B. called “mom.”
On December 18, 2022, when J.B. was 10 years old, Cano prayed with her
pastor while at church, and revealed a potential outcry by J.B. of sexual
assault. The outcry was reported to police by the pastor’s wife. Villarreal,
whom J.B. called “dad” and who had lived with Cano and J.B., was later alleged
to be the perpetrator of the sexual assault. Villarreal and Cano were married
but had separated shortly before the outcry.
Dr. Lydia Bailey, the Program Director at the Navarro County
Children’s Advocacy Center, performed a forensic interview of J.B. after the
initial report to police, and interviewed J.B. on two different occasions. In the
first interview, conducted on December 20, 2022, J.B. detailed how on one date,
Villarreal touched her while on her bed, took off her underwear, and
penetrated her vagina with his finger and then rubbed and pinched her chest.
She also detailed how Villarreal touched her chest and penetrated her vagina
with his finger on another date. A second forensic interview was conducted on
January 12, 2024, over two years after J.B.’s initial statements. In this
interview, J.B. recanted, stating that she had lied about Villarreal. J.B.
further stated that she had made the initial outcry, based on a suggestion by a
school friend, because she did not want Villarreal to leave. Dr. Bailey, who had
been found to be the outcry witness, shared the details of both interviews of
J.B. with the jury. At trial, J.B. maintained that her initial outcry statement
was a lie, despite also claiming she did not remember what she had said.
Villarreal v. State Page 2 SUFFICIENCY OF THE EVIDENCE
In his first issue, Villarreal contends the evidence is insufficient to
support his conviction because J.B. recanted her outcry of sexual assault and
the remaining evidence supporting the conviction was too speculative to prove
beyond a reasonable doubt that Villarreal’s fingers contacted J.B.’s vagina. 1
The Court of Criminal Appeals has expressed our standard of review of
a sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we
consider whether, after viewing all of the evidence in the light most
favorable to the verdict, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App.
2017). This standard requires the appellate court to defer “to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
319. We may not re-weigh the evidence or substitute our judgment
for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007). The court conducting a sufficiency review
must not engage in a “divide and conquer” strategy but must
consider the cumulative force of all the evidence. Villa, 514 S.W.3d
at 232. Although juries may not speculate about the meaning of
facts or evidence, juries are permitted to draw any reasonable
inferences from the facts so long as each inference is supported by
the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757
(Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also
Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We
presume that the factfinder resolved any conflicting inferences
from the evidence in favor of the verdict, and we defer to that
resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App.
1
We note that Villarreal was not charged with contacting J.B.’s sexual organ; rather, he was charged with penetrating her sexual organ.
Villarreal v. State Page 3
2012). This is because the jurors are the exclusive judges of the
facts, the credibility of the witnesses, and the weight to be given to
the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
App. 2010). Direct evidence and circumstantial evidence are
equally probative, and circumstantial evidence alone may be
sufficient to uphold a conviction so long as the cumulative force of
all the incriminating circumstances is sufficient to support the
conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App.
2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient
to support a conviction by comparing it to “the elements of the
offense as defined by the hypothetically correct jury charge for the
case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
The hypothetically correct jury charge is one that “accurately sets
out the law, is authorized by the indictment, does not
unnecessarily increase the State's burden of proof or unnecessarily
restrict the State's theories of liability, and adequately describes
the particular offense for which the defendant was tried.” Id.; see
also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.
2013). The “law as authorized by the indictment” includes the
statutory elements of the offense and those elements as modified
by the indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
Our review of “all of the evidence” includes evidence that was properly
and improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App.
2001). Likewise, it is well established that the factfinder, as the exclusive
judges of the facts and the credibility of the witnesses, can choose to believe
all, some, or none of the testimony presented by the parties. See Chambers v.
State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Further, outcry testimony admitted in compliance with article 38.072 is
Villarreal v. State Page 4 considered substantive evidence, admissible for the truth of the matter
asserted in the testimony. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.
App. 1991). Thus, this type of evidence is, by itself, sufficient to support a jury's
verdict of conviction. Id.; Cervantes v. State, 594 S.W.3d 667, 673 (Tex. App.—
Waco 2019, no pet.). When the requisites of article 38.072 are met as far as
the substantive nature of the outcry testimony, there is no requirement that
the outcry witness testimony be corroborated or substantiated by the victim's
testimony or by independent evidence. Rodriguez v. State, 819 S.W.2d. at 874.
Dr. Bailey was determined to be, and was designated as, the outcry
witness as defined by the Texas Code of Criminal Procedure. See TEX. CODE
CRIM. PROC. art. 38.072. She testified that J.B. already knew why she was at
the Advocacy Center: the police had come to J.B.’s house to talk to her
“[b]ecause they know something, like my dad [Villarreal] touched me.” When
Bailey asked J.B. to tell her about it, J.B. described that, after Cano and
Villarreal separated, Villarreal had touched her two times. The first time was
on a Monday or Wednesday, and the last time was on a Friday.
She described the first time as that he touched her on her private place.
When asked to tell the whole story from start to finish, J.B. told Bailey that
she had woken up and that Villarreal had come to the house before J.B. left for
school. J.B. said Villarreal touched her and then he took her to the bus stop.
Villarreal v. State Page 5 J.B. then described that, on Friday, he came in and did the same thing.
Dr. Bailey had J.B. clarify how she was alone with Villarreal during the
first incident and testified that:
[Villarreal] came in with his own keys. He let himself in the house.
He left his stuff and he went into her room, where she was. She
had already changed her clothes for school.
***
The first thing he did was tell her to sit on the bed. And she sat on
the bed, like she was sitting in the chair. He moved her legs. He
pushed them to the side. This -- that was when she's sort of
gesturing how it happened with her hands; and that he touched
her private part and on her top.
Dr. Bailey clarified with J.B. that the private part she was describing was the
part that she used to go “No.1.” Then J.B. told Dr. Bailey that Villarreal was
sitting beside her and he used his hand to touch under her clothes. He took
her pants off by telling her to stand up and pulling her pants down. He took
off her underwear and started touching her private parts, “and then on top.”
Dr. Bailey testified that:
[J.B.] pointed to these parts, as she was talking. And then, she
said, when he was touching her private part — her private part,
he rubbed it on the inside of her body and he used — she used her
hand to gesture movements, while she was actually touching her
own private part.
***
So I asked her to clarify that. And she said he stuck his finger
inside of her body and gestured a moving kind of in a circular
motion. She said it felt weird that he, then, touched on top of her
body. He took off her shirt and touched her chest. She pointed
directly to her breasts, at that moment. She said he rubbed it and
Villarreal v. State Page 6
pinched it. And she used a gesture, at that time, of pinching.
***
In clarifying questions, when she's describing what’s happening,
she was actually sort of doing that to her own body: Moving her
leg, when she said he would—he opened her legs; pinching, she
would pin—make the motion towards her body; demonstrating her
finger, what his finger was doing, is indicative of a person who
probably experienced that but may not have the language to
describe it verbally.
Regarding the second incident occurring on a Friday, Dr. Bailey asked followup questions of J.B. who then described the incident to Dr. Bailey as follows:
… she was in her bedroom, sitting on her bed, brushing her hair,
which was different than the first time. That he came in and he
began that second time by touching her breasts. She again,
gestured with her hands, that portion of her body. And then, he
started touching her over her clothes and then on her skin, by
raising her shirt up.
***
And then, this time, he touched her private part second. He
touched her private area where she gestured again, pointed, on her
clothes, and then took her pants off, but not all the way. And then,
he was touching and rubbing her private part. He touched her skin
on the inside of her body with his fingers that time. She said it felt
weird but kind of like uncomfortable. Then, she described that his
finger moved around and he was rubbing it.
Dr. Bailey stated that J.B. said Villarreal stopped what he was doing this time
because it was time to go to the bus stop.
On appeal and at trial, Villarreal attacked Dr. Bailey’s credibility,
claiming she prompted J.B.’s responses. Villarreal also asserted that the
evidence of digital penetration was too weak because J.B. recanted her
Villarreal v. State Page 7 accusation against Villarreal. But because the jury is the sole judge of the
credibility and weight to be given the witnesses' testimony, the jury could have
reasonably believed Dr. Bailey’s testimony regarding J.B.’s initial outcry
describing how Villarreal sexually assaulted her rather than J.B.’s later recant
of the offense to Dr. Bailey and J.B.’s trial testimony in which she stated she
lied about the sexual assault. That the jury believed Dr. Bailey’s testimony is
especially convincing because in J.B.’s recant of the offense to Dr. Bailey, J.B.
blamed the idea to accuse Villarreal on a classmate named Sophia who was
later determined not to be enrolled in school with J.B. at the time the original
outcry was made. Further, when J.B. testified in court, she could not
remember much about occurrences on which the State asked her, including
what she discussed in either of her interviews with Dr. Bailey. Yet, on crossexamination by Villarreal’s counsel, J.B. could remember quite a few details
about falsely accusing Villarreal.
Villarreal also asserted on appeal that because the jury sent out several
notes regarding a read-back of why Dr. Bailey may not have believed J.B.’s
recant of the offense, the jury was confused by Dr. Bailey’s testimony and did
not believe her. However, once the trial court and counsel understood what
the jury was requesting (it took several notes from the jury to clarify their
request) and that portion of Dr. Bailey’s testimony was read back, the jury
Villarreal v. State Page 8 returned with a unanimous guilty verdict 20 minutes later. This does not
indicate that the jury did not believe Dr. Bailey and is not a reason to find the
evidence insufficient to support Villarreal’s conviction.
Accordingly, because Villarreal's conviction can be supported by the
testimony of Dr. Bailey alone, we find that the evidence Dr. Bailey presented,
when viewed in the light most favorable to the verdict, is sufficient to support
Villarreal’s conviction. However, if upon further review it is determined Dr.
Bailey's testimony alone is not sufficient, there is other evidence in the record,
when combined with Dr. Bailey’s testimony, sufficient to support Villarreal’s
conviction.
During a medical evaluation, the SANE nurse, Elizabeth Wolf, wrote in
her report, which was admitted into evidence and read aloud to the jury, that
J.B. explained:
So when my parents separate, kinda [sic] like my parents
(grandmother & her husband) I had to go to school one day I was
changing clothes, well I was already dressed and he came in and
started touching me. He touched my here (points at vagina). I had
my clothes on but he took them off. This was at where I live now.
His name is Rudy. I don't know his last name. He is like 40 or
something like that. He used to be be [sic] my mom (grandmother)
husband. He took off my pants and underwear but not my shirt. I
was confused. This was the first time. I [sic] was before
Christmas, well, I don't [sic] the date but it was like before
Christmas. He did it 2 times. He always do the same thing. It
was his hand. It was on the outside of my middle part but one
finger was inside my middle part. I told my mom (grandmother)
on a weekend because I was all sad and everything. I felt
Villarreal v. State Page 9
disappointed, kinda [sic] sad, and pretty mad. I think he was in
jail before for the same thing but I don't know the girl it was. I feel
more safer [sic] that he is in jail but sad to [sic], but mostly safer
with him in jail.
Wolf added the information in the parentheses for clarification.
Further, Wolf reported that J.B. said the last incident occurred “before
Christmas, like a Friday” and that J.B. did not want to take her clothes off for
a head-to-toe exam because she did not feel comfortable doing so. Wolf also
wrote in her report that the grandmother, meaning Micaela Cano, said
Villarreal told J.B. not to tell about what had happened and that she goes to
work at 5 a.m., and that Villarreal was home with J.B. In response to
questioning by Villarreal about failing to acquire DNA evidence, Wolf stated
she had never gone to trial on a case where DNA was recovered on a digital
penetration outcry.
With this additional testimony, also viewed in the light most favorable
to the verdict, we find the evidence sufficient to support Villarreal’s conviction.
Villarreal’s first issue is overruled.
EXTRANEOUS OFFENSE
Villarreal next contends the trial court abused its discretion in admitting
Villarreal’s prior 2003 conviction for the aggravated sexual assault of Octavia
Lewis when she was nine years old because the prior offense was not “res
gestae” or pursuant to a common plan under Rule 404(b) of the Texas Rules of
Villarreal v. State Page 10 Evidence, and was more prejudicial than probative under Rule 403 also of the
Texas Rules of Evidence. See TEX. R. EVID. 404(b), 403.
Generally, evidence of an extraneous offense is inadmissible if offered to
prove a person's character to show the person acted in conformity with that
character. See TEX. R. EVID. 404(b); Deggs v. State, 646 S.W.3d 916, 922 (Tex.
App.—Waco 2022, pet. ref'd). However, pursuant to article 38.37 and despite
Rule 404(b), evidence that a defendant on trial for certain sex offenses against
a child committed a separate sex offense against another child is admissible
for any relevant purpose, including as proof of the defendant's character and
propensity to act in conformity with his character. See TEX. CODE CRIM. PROC.
art. 38.37, sec. 2(b); Deggs, 646 S.W.3d at 922. The sex offenses committed by
Villarreal fall under the scope of article 38.37, and the extraneous offense was
admitted pursuant to this statute. Thus, Villarreal’s Rule 404(b) complaints
are not valid. Even if his complaints were valid, they were not preserved
because Villarreal failed to raise a Rule 404(b) complaint with the trial court.
See TEX. R. APP. P. 33.1(a). This part of Villarreal’s issue is overruled.
Nevertheless, even when evidence of a defendant's extraneous acts is
relevant under article 38.37, the trial court must still conduct a Rule 403
balancing test upon proper objection or request. Distefano v. State, 532 S.W.3d
25, 31 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). See also Guedea v.
Villarreal v. State Page 11 State, 683 S.W.3d 549, 555 (Tex. App.—Waco 2023, no pet.). Villarreal’s Rule
403 complaint was raised with the trial court and thus is preserved for our
review.
To determine whether evidence is admissible under Rule 403, we use the
Montgomery factors: (1) the strength of the evidence's probative value; (2) the
potential for the evidence to “impress the jury in some irrational but
nevertheless indelible way;” (3) the amount of time required at trial to develop
the evidence; and (4) the proponent's need for the evidence. Hart v. State, 688
S.W.3d 883, 891 (Tex. Crim. App. 2024); Montgomery v. State, 810 S.W.2d 372,
389-90 (Tex. Crim. App. 1990) (op. on reh'g). All testimony and physical
evidence are likely to be prejudicial to one party or the other. Davis v. State,
329 S.W.3d 798, 806 (Tex. Crim. App. 2010). It is only when there exists a
clear disparity between the degree of prejudice of the evidence offered and its
probative value that Rule 403 is applicable. Id.
Villarreal cited to the six-factor review listed in Gigliobianco.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
However, when applying those factors, he merely repeated three of the factors
in a conclusory manner and asserted the introduction of the extraneous offense
was “unfairly prejudicial.” This is not sufficient. There was no application of
the facts the trial court had before it to the factors relied on by Villarreal and
Villarreal v. State Page 12 no argument that this application would support a determination that the
probative value of the evidence was substantially outweighed by the danger of
unfair prejudice. See TEX. R. EVID. 403.
Accordingly, this part of Villarreal’s issue is inadequately briefed and
presents nothing for review. See TEX. R. APP. P. 38.1(i). We are under no
obligation to make his arguments for him. Lucio v. State, 351 S.W.3d 878, 896-97 (Tex. Crim. App. 2011); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim.
App. 2008) (affirming that this Court has no obligation “to construct and
compose” a party's “issues, facts, and arguments with appropriate citations to
authorities and to the record” (internal quotes omitted)).
Villarreal’s second issue is overruled.
MISTRIAL
In his third issue, Villarreal contends the trial court erred in denying his
motion for mistrial after a witness testified in a non-responsive manner, that
Villarreal “does have a Sex Offender—Sex Offender—,” to a question regarding
whether Villarreal had a vehicle. Counsel for Villarreal cut off any further
response from the witness by objecting. When he approached the bench,
counsel immediately requested a mistrial. After considerable discussion at the
bench, the trial court instructed the jury to “disregard the last statement,” and
denied the motion for mistrial. The trial court also gave an extraneous offense
Villarreal v. State Page 13 limiting instruction in its charge to the jury.
We review a trial court's denial of a motion for mistrial under an abuse
of discretion standard. Archie v. State, 340 S.W.3d 734, 738-39 (Tex. Crim.
App. 2011). Mistrial is the appropriate remedy when the objectionable event
is so emotionally inflammatory that curative instructions are not likely to
prevent the jury from being unfairly prejudiced against the defendant. Id. at
739. We generally presume the jury followed the trial court's instructions.
Allison v. State, 666 S.W.3d 750, 764 (Tex. Crim. App. 2023); Waldo v. State,
746 S.W.2d 750, 754 (Tex. Crim. App. 1988) (jury presumed to follow
instruction to disregard evidence). This presumption is rebuttable; however,
to rebut the presumption, Villarreal must point to evidence in the record
indicating the jury failed to follow the trial court's instructions. See Thrift v.
State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).
Villarreal argues that the jury heard he was a registered sex offender,
and the intentional reference, coupled with the instruction to disregard,
permanently influenced the jury’s perception of him. But there was no
testimony as to what the witness meant when he stated Villarreal had a “Sex
Offender—.” No witness or evidence ever mentioned, prior to this moment or
immediately thereafter, that Villarreal was a registered sex offender. It was
only at the end of the State’s case the following day that the jury learned
Villarreal v. State Page 14 Villarreal had a 20-year old prior aggravated sexual assault conviction. And
although the jury sent notes to the trial court during its deliberations, none of
the notes concerned the witness’s testimony or the prior conviction. Further,
the trial court did not reference the subject of the statement when it gave its
instruction to disregard after a contentious discussion at the bench. Thus,
there is no evidence in this record to indicate that the jury failed to follow the
trial court's instruction to disregard the witness’s non-responsive answer.
Accordingly, we conclude that the witness’s non-responsive answer was
not so inflammatory as to undermine the efficacy of an instruction to disregard.
See Irsan v. State, 708 S.W.3d 584, 627-28 (Tex. Crim. App. 2025); Kemp v.
State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (“uninvited and
unembellished reference to appellant's prior incarceration—although
inadmissible—was not so inflammatory as to undermine the efficacy of the
trial court's instruction to disregard.”). Thus, the trial court did not abuse its
discretion in denying Villarreal’s motion for mistrial.
Villarreal’s third issue is overruled.
OUTCRY WITNESS
Next, Villarreal contends the trial court abused its discretion by
admitting Dr. Bailey’s testimony concerning J.B.’s sexual-assault outcry since,
Villarreal alleges, J.B.’s grandmother, Micaela Cano, was the first person to
Villarreal v. State Page 15 whom J.B. described the offense. We disagree with Villarreal.
Article 38.072 of the Texas Code of Criminal Procedure, the outcry
statute, governs the admissibility of certain hearsay evidence in a trial for
specified crimes, such as the crime in this case—aggravated sexual assault of
a child younger than fourteen years old. TEX. CODE CRIM. PROC. art. 38.072;
TEX. PENAL CODE § 22.021. The statute creates a hearsay exception and allows
testimony of the first adult in whom the child confides regarding sexual or
physical abuse. See id. art. 38.072, § 2(a)(3); see also Martinez v. State, 178
S.W.3d 806, 810-11 (Tex. Crim. App. 2005).
The Court of Criminal Appeals has explained that under article 38.072,
the proper outcry witness is the first adult person to whom the child describes
the alleged offense in some discernible manner beyond general insinuations
that sexual abuse occurred. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim.
App. 2011); see Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990).
However, the proper outcry witness is not determined merely by comparing the
statements the child gave to different individuals and then deciding which
person received the most detailed statement about the offense. Bradshaw v.
State, 675 S.W.3d 78, 80 (Tex. App.—Waco 2023), aff’d, 707 S.W.3d 412 (Tex.
Crim. App. 2024). Rather, the victim must describe the alleged offense to the
witness. Garcia, 792 S.W.2d at 91; Bradshaw, 675 S.W.3d at 80.
Villarreal v. State Page 16
We review a trial court's ruling regarding an outcry witness designation
for an abuse of discretion. See Garcia, 792 S.W.2d at 92; Bradshaw, 675 S.W.3d
at 80. We will not disturb the trial court's decision “if the ruling was within
the zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367
(Tex. Crim. App. 2008); Cervantes v. State, 594 S.W.3d 667, 673 (Tex. App.—
Waco 2019, no pet.).
Villarreal contends Cano was the first adult to whom J.B. described the
alleged offense because the required summary provided by the State of what
Cano would testify about, see TEX. CODE CRIM. PROC. art. 38.072, sec. 2, (b)(1),
showed that J.B. described the offense in a discernible manner to Cano, first
and then to Dr. Bailey, three days later. The summary indicated that Cano
told the State:
two different times, after everyone left for work and [J.B.] was
alone, her dad (the defendant) would come over and take her to her
bedroom and touch her. He took her pants off and touched her
private part with his hand. Then he put his fingers inside of her
middle part.
However, by the time the trial court held the required outcry-witness hearing,
see id. sec. 2, (b)(2), J.B. had recanted and Cano testified that J.B. told her
Villarreal had touched her but did not give Cano any details. When pressed,
Cano testified that J.B. said Villarreal touched J.B. once on her “private part”
on the outside of her body. Cano also testified that later, J.B. told her she had
Villarreal v. State Page 17 lied. Meanwhile, Dr. Bailey testified consistent with her summary that, at two
different times in J.B.’s bedroom, Villarreal touched J.B.’s “private part with
his hands and fingers” and that he “would rub inside of her vagina….”
Further, after Dr. Bailey’s testimony, the State informed the court that
it was concerned Cano would not be the proper outcry witness because Cano’s
testimony at the hearing was distinctly different than what she had told the
State earlier. The State further asserted that since Cano would not admit
Villarreal penetrated J.B., Cano could not be an outcry witness to the indicted
offense. Consequently, the State offered Dr. Bailey as the outcry witness who
the trial court accepted.
Simply because Cano, at one time, could recall J.B.’s description of the
alleged offense, but at trial could not, or would not, recall that same
description, describing instead a different offense, does not mean the State
must use her as the outcry witness. Thus, we agree with the Austin Court of
Appeals which, when it was presented with a similar situation, determined
that:
the societal interest in curbing child abuse would not be served if
we interpreted the statute to require that the “first person” could
only be the person to whom the child made outcry even though that
person did not hear, did not remember, or did not understand what
the child was saying. We interpret the statute to mean that the “first
person” refers to the first adult who can remember and relate at
trial the child's statement that in some discernible manner
describes the alleged offense.
Villarreal v. State Page 18 Foreman v. State, 995 S.W.2d 854, 859 (Tex. App.—Austin 1999, pet. ref'd)
(emphasis added).
Accordingly, because Cano was not the first adult who could remember
and relate at trial J.B.’s statement describing the alleged offense in a
discernible manner and Dr. Bailey was the first adult who could do so, the trial
court did not abuse its discretion in determining that Dr. Bailey was the proper
outcry witness.
Villarreal’s fourth issue is overruled.
BILL OF COSTS
In his fifth and final issue, Villarreal complains that the evidence is
insufficient to support the judgment amount of costs because no bill of costs
was included in the appellate record. See TEX. CODE CRIM. PROC. art. 103.001.
Villarreal asserts that the appellate record should be supplemented with a bill
of costs. See Johnson v. State, 423 S.W.3d 385, 392 (Tex. Crim. App. 2014).
The appellate record has been supplemented with a bill of costs, and
Villarreal’s fifth issue is overruled.
CONCLUSION
Having overruled each of Villarreal's issues on appeal, we affirm the trial
court’s judgment.
Villarreal v. State Page 19
LEE HARRIS
Justice
OPINION DELIVERED and FILED: August 27, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do Not Publish
CRPM
Villarreal v. State Page 20