Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00036-CR
Roberto Hirineo RODRIGUEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 15-10-14239-CRSI2
Honorable J. Manuel Banales, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Beth Watkins, Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: March 3, 2021
AFFIRMED
A jury convicted Roberto Hirineo Rodriguez of continuous sexual assault of a child and
assessed punishment at thirty years’ confinement. In a single issue on appeal, Rodriguez asserts
that, during a pre-trial hearing, the trial court erred by admitting out-of-court video statements from
a testifying child victim over his hearsay objection. We affirm.
04-20-00036-CR
PROCEDURAL & FACTUAL BACKGROUND
Shortly after the initial report of sexual assault was made, the child-complainant, Aliana,
and her sister, Sarah, were interviewed by the Children’s Advocacy Center of the Coastal Bend. 1
Both interviews were video-recorded. After voir dire, but before trial on the merits commenced,
the trial court conducted a hearing to determine the reliability of the forensic interviewer, Penny
Green, and the therapist, Sylvia Martinez, as potential outcry witnesses. The court also considered
whether Sarah could testify at trial to give evidence of Rodriguez’s extraneous offenses.
Rodriguez objected that because the State intended to call Sarah as a witness at trial, her
recorded testimony should not be admitted at the hearing. The court overruled the objection and
allowed Sarah’s recorded testimony to be played. During the trial, several witnesses testified,
including Aliana and Sarah. The video-recorded interviews of neither Aliana nor Sarah were
presented to the jury. The jury returned a guilty verdict and assessed punishment. This appeal
ensued.
ANALYSIS
In a single issue on appeal, Rodriguez asks whether Texas Code of Criminal Procedure
article 38.072 “authorizes the introduction of a child’s out-of-court outcry video into evidence in
addition to live testimony of that child victim?” Rodriguez contends article 38.072 authorizes
testimony from an outcry witness, such as Penny Green, but it does not authorize the admission
into evidence of a video or audio tape of an “out-of-court, ex parte, un-cross-examined statement,”
such as Sarah’s recorded statement.
Article 38.072 applies to out-of-court statements that: (1) describe the alleged offense; (2)
are made by the child-complainant; and (3) are made to the first person, eighteen years of age or
1
The names of both girls are the pseudonyms used in the trial court record.
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04-20-00036-CR
older, other than the defendant, to whom the child-complainant made a statement about the offense.
See TEX. CODE CRIM. PROC. art. 38.072, § 2(a); Bays v. State, 396 S.W.3d 580, 581 n.1 (Tex. Crim.
App. 2013). In Bays, the Court considered whether the trial court impermissibly admitted the
child-complainant’s videotaped statement under the so-called outcry statute, article 38.072.
In that case, during the sexual assault investigation, police officers asked Kelsey Drennan,
an investigator for the Texas Department of Family and Protective Services to interview the child-
complainant. 396 S.W.3d at 583. During trial, the State called Drennan as its designated outcry
witness and offered the thirty–minute videotape of the child-complainant’s interview. Over the
appellant’s hearsay objection, the trial court admitted the recording in its entirety, and it was played
for the court. Drennan did not testify about any of the child’s outcry statements. Instead, the sole
evidence of the statements the child made to Drennan was the videotape of the interview. Id. After
the videotape was played, the child testified.
On appeal, the appellant and the State disagreed on whether the videotaped recording of
the child-complainant’s interview should be admissible under the outcry statute. Id. at 584. To
resolve the issue, the Court of Criminal Appeals considered conflicting interpretations of the
outcry statute. “With respect to the question of what forms of evidence are admissible under the
statute, the phrase ‘witness through whom it intends to offer the statement’ could reasonably be
interpreted as indicating that the child’s outcry statement must be conveyed directly ‘through’ the
testimony of the outcry ‘witness.’” Id. at 585. On the other hand, “[a]lthough the statute clearly
contemplates that the child’s statements will be offered ‘through’ an outcry ‘witness,’ the State
argues that this language does not necessarily compel the conclusion that the witness must relate
the child’s statements through testimony.” Id. at 586. “Rather, under this latter interpretation, any
form of evidence, including a video recording of the child’s out-of-court statement, would be
admissible, so long as the proper outcry witness was present at trial and could act as a sponsoring
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witness for that recording.” Id. After an analysis of other relevant statutes, 2 the Court concluded
article 38.072 did not permit admission of video-recorded statements of a child-complainant and
the statutory hearsay exception for outcry evidence applied only when the child’s statements were
conveyed through the testimony of the properly designated outcry witness. Id. at 584, 592.
If Bays were applicable, Sarah’s video-recorded interview would not have been admissible
in lieu of Penny Green’s testimony as the outcry witness. That, however, is not the case. The
recording of Sarah’s testimony was not offered or admitted into evidence during trial or played for
the jury in lieu of the testimony of the outcry witness. In fact, the video-recording was never
played for any purpose at trial and was admitted only for purposes of the pre-trial hearing.
Furthermore, Sarah’s testimony at trial was offered pursuant to article 38.37, 3 which allows for the
admission of certain extraneous evidence. Therefore, Rodriguez’s argument that article 38.072
prohibited the introduction of Sarah’s recorded testimony in addition to her live testimony lacks
any foundation in the record.
CONCLUSION
For the reasons stated above, we overrule Rodriguez’s issue on appeal and affirm the trial
court’s judgment.
Lori I. Valenzuela, Justice
Do not publish
2
The Court noted that the “admissibility of a child-victim’s pretrial recorded statements is more specifically governed
by a related statute set forth at Texas Code of Criminal Procedure Article 38.071, which we refer to as the ‘video
statute.’” Id. at 588.
3
Article 38.37, section (2)(b) allows evidence of a defendant’s extraneous sexual offenses committed against other
children to be admitted “for any bearing the evidence has on relevant matters, including the character of the defendant
and acts performed in conformity with the character of the defendant.” TEX. CODE CRIM. PROC. art. 38.37, § (2)(b).
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