LOBO v. STATE (2025)

OPINION

Appellant Carlos Lobo was convicted of the first-degree felony of continuous sexual abuse of a young child. See Tex. Penal Code Ann. § 21.02(b), (h). In a single issue on appeal, appellant argues the trial court abused its discretion by designating the incorrect person as the outcry witness. However, we conclude that the trial court did not abuse its discretion because the proffered outcry witness was the first person who could properly testify regarding the continuous nature of the offense. Accordingly, we overrule appellant's sole issue and affirm the judgment of the trial court as challenged on appeal.

I. Background

Appellant was indicted for continuous sexual abuse of Mary, his niece.¹ During trial, a hearing was conducted to designate an outcry witness for the two alleged instances of sexual abuse against Mary.

In February 2016, Mary was 13 years old and attending middle school. Linda Martinez worked as an English as a Second Language (“ESL”) aide at the school, and had Mary as one of her students. Mary approached Martinez and asked to talk with Martinez alone. Mary revealed to Martinez that appellant had sexually abused her the prior weekend.

Later that day, Mary spoke with Erika Gomez, a forensic interviewer at the Children's Assessment Center in Houston. During that interview, Mary disclosed two instances of sexual abuse. In addition to mentioning the instance of sexual abuse from the prior weekend that Mary had already mentioned to Martinez, Mary also claimed that appellant had sexually abused her in November 2015. The trial court designated Gomez as the outcry witness for both instances.

The jury found appellant guilty and assessed punishment at thirty years of imprisonment. This appeal followed.

II. Appellate Issues

In his sole issue, appellant argues the trial court erred in designating Gomez as the outcry witness. More specifically, appellant asserts that Martinez should have been designated as the outcry witness for the alleged sexual offense in February 2016 because Mary first disclosed that instance of sexual abuse to Martinez, not Gomez.

A. Standard of review and applicable law

Article 38.072 provides a statutory hearsay exception for an outcry statement made by a child victim of a sexual offense so long as that statement is a description of the offense and is offered into evidence by the first adult the complainant told of the offense. Tex. Code Crim. Pro. Ann. art. 38.072, § 2.

We review a trial court's designation of an outcry witness for an abuse of discretion. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). “The trial court has broad discretion to determine which of several witnesses is an outcry witness, and we will not disturb this decision absent a clear abuse of discretion.” Guzman v. State, 591 S.W.3d 713, 722 (Tex. App.—Houston [1st Dist.] 2019, no pet.).

B. Analysis

Article 38.072 applies to statements that describe “the alleged offense.” Tex. Code Crim. Pro. Ann. art. 38.072, § 2(a)(1). In this case, “the alleged offense” was continuous sexual abuse of a child, which requires the commission of at least two acts of sexual abuse, separated by 30 days or more in duration. Tex. Penal Code Ann. § 21.02(b)(1). Thus, “the alleged offense” in this case had as a required element both multiple acts and a showing of a duration greater than 30 days.

While Mary outcried to Martinez about a solitary incident of abuse, the trial court could have concluded that Gomez was the proper outcry witness for “the alleged offense” because she was the first adult to whom Mary outcried regarding multiple events of sexual abuse more than 30 days apart. See Kappes v. State, 715 S.W.3d 414, 422 (Tex. App.—El Paso 2023, pet. ref'd) (“Thus, the record shows that although Browning was the first adult who learned about the general existence of the abuse, Eaton was the first adult to whom Child sufficiently described the details of the abuse. These details included the existence of penetration that occurred over a long period of time[.]”); Michell v. State, 381 S.W.3d 554, 559 (Tex. App.—Eastland 2012, no pet.) (concluding the trial court did not err in designating the forensic interviewer as the outcry witness, even though complainant had first outcried to other individuals, because the complainant's earlier statements to other individuals did “not touch upon the detail required when a defendant is charged with continuous sexual abuse of a young child or children․ [which includes] the time element—that the acts of sexual abuse continued for a period in excess of thirty days”).

Therefore, we conclude the trial court did not abuse its discretion by allowing Gomez to testify as the outcry witness. We overrule appellant's sole issue.

III. Conclusion

We affirm the judgment of the trial court as challenged on appeal.

FOOTNOTES

1.   Because she was a child at the time of the offense, we refer to the complainant using a pseudonym. Tex. R. App. P. 9.10(a)(3).

Tonya McLaughlin, Justice