Opinion filed December 30, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00406-CR
__________
JOHNNY DELAGARZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 12953-D
MEMORANDUM OPINION
The State charged Appellant, Johnny Delagarza, by indictment with
Continuous Sexual Abuse of a Child. See TEX. PENAL CODE ANN. § 21.02 (West
Supp. 2021). The jury convicted Appellant, and the trial court assessed his
punishment at confinement for a term of twenty-five years in the Institutional
Division of the Texas Department of Criminal Justice. Appellant presents three
issues for our review—all of which relate to a single incident at trial involving the
admission of evidence elicited by the prosecutor. He asserts in his first issue that the
evidence that was admitted violated his constitutional right to a fair trial. In his
second issue, he asserts that he was excused from having to preserve error at trial
because of the nature of the alleged error. In his third issue, he asserts that he
suffered harm from the alleged error. We affirm.
Background Facts
The underlying proceedings arise from an outcry of sexual abuse. When R.H.,
the victim in this case, was four or five years old, her mother began dating Appellant.
When R.H. was in the fifth grade, she made a general outcry to her school nurse,
Jennifer Bourland. The next day R.H. made a specific outcry to Shelley Scott, a
forensic interviewer at the Child Advocacy Center (CAC). R.H. alleged that
Appellant had sexually abused her on multiple occasions, beginning around the age
of four. Scott interviewed R.H. on two occasions, first in March when R.H. made a
partial outcry, and again in July when R.H. made additional allegations against
Appellant.
At trial, Scott testified as follows:
Q [by the State]: . . . [R.H.] talked to you about Mr. Delagarza
getting her things and things like that. What is the term y’all use at the
CAC?
A: We would call it grooming.
Q: Okay. And can you explain to the jurors what grooming is?
A: So, sometimes if someone is going to start doing something
to a child, then they start kind of treating them special. So, even
sometimes if they’re siblings or something, they’ll treat one differently
than everybody else. They’ll start buying things for them, letting them
do things they normally don’t get to do, things like that.
Q: And out of the thousands of interviews you’ve done, I guess,
at the CAC, how common is it for what we call delayed outcry to
happen?
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A: Very common.
Q: Okay. And do you know a percentage or an estimate of what
you would think a delayed outcry happened in your interviews?
A: I wouldn’t be able to give you a number, but I would just say
that it’s more common than not that a child delays their outcry. It’s not
usually an immediate thing.
Q: Okay. And is that something you’ve seen throughout all your
interviews?
A: Absolutely.
Q: Okay. And how about a partial outcry? Is this something that
you’ve seen throughout your interviews?
A: Yes, sir.
Appellant did not object to the testimony at trial, and he did not file a motion for
new trial. Appellant now challenges the admission of Scott’s testimony about
grooming, delayed outcries, and partial outcries with child victims, contending that
the testimony is predicated on an unreliable scientific theory that has deprived him
of his constitutional right to a fair trial.
Analysis
Appellant asserts that the above exchange between the prosecutor and Scott
deprived him of his constitutional right to a fair trial as guaranteed by the Due
Process Clause of the Fourteenth Amendment. Appellant contends that the admitted
testimony was predicated on the psychological theory of “Child Sexual Abuse
Accommodation Syndrome” (CSAAS), which Appellant calls an unreliable
“pseudoscience.” The State contends that the testimony was not based on CSAAS,1
We note that Scott was never asked about CSAAS, and there is no indication in the record that her
1
testimony was based on CSAAS.
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that testimony on grooming 2 and delayed or partial outcries 3 of child victims is
accepted in Texas, and that Appellant’s complaint is unpreserved.
We first address the threshold issue of whether Appellant preserved his
argument for appellate review. Generally, to preserve a complaint for appellate
review, a party must make a contemporaneous objection in the trial court. See
Burg v. State, 592 S.W.3d 444, 448–49 (Tex. Crim. App. 2020) (citing TEX. R.
APP. P. 33.1(a)(1)). As noted by the Texas Court of Criminal Appeals, there are two
general policies for requiring specific objections: “First, a specific objection is
required to inform the trial judge of the basis of the objection and afford him the
opportunity to rule on it. Second, a specific objection is required to afford opposing
counsel an opportunity to remove the objection or supply other testimony.”
Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). “[O]bjections
promote the prevention and correction of errors. When valid objections are timely
made and sustained, the parties may have a lawful trial. They, and the judicial
system, are not burdened by appeal and retrial. When a party is excused from the
requirement of objecting, the results are the opposite.” Saldano v. State, 70 S.W.3d
873, 887 (Tex. Crim. App. 2002).
Appellant contends that his trial attorney did not have to object to the above
testimony in order to preserve his complaint for appellant review. Appellant
contends that he suffered a “fundamental error” and that we may take notice of the
2
See Morris v. State, 361 S.W.3d 649, 655–69 (Tex. Crim. App. 2011) (holding that the legitimacy
of “grooming” testimony has been so sufficiently established that it may be “judicially noticed” by looking
to decisions of our court and other courts who have addressed the issue.
3
Testimony about delayed or partial outcries in child victims is widely accepted as within the scope
of expert testimony. See, e.g., Rojas v. State, No. 02-15-00144-CR, 2016 WL 6648748, at *3–4 (Tex.
App.—Fort Worth Nov. 10, 2016, pet. ref’d) (mem. op., not designated for publication) (finding a forensic
interviewer was qualified by her education, training, and experience to testify about delayed outcries);
Dotson v. State, No. 11-03-00013-CR, 2004 WL 1103596, at *3 (Tex. App.—Eastland May 13, 2004, pet.
ref’d) (not designated for publication); Kirkpatrick v. State, 747 S.W.2d 833, 835-36 (Tex. App.—Dallas
1987, pet. ref’d).
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error pursuant to Rule 103(e) of the Texas Rules of Evidence. See TEX. R. EVID.
103(e) (“In criminal cases, a court may take notice of a fundamental error affecting
a substantial right, even if the claim of error was not properly preserved.”).
“All but the most fundamental rights are thought to be forfeited if not insisted
upon by the party to whom they belong.” Marin v. State, 851 S.W.2d 275, 279 (Tex.
Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262,
264 (Tex. Crim. App. 1997). Fundamental errors fall into “two relatively small
categories of errors: violations of ‘rights which are waivable only’ and denials of
‘absolute systemic requirements.’” Saldano, 70 S.W.3d at 888; see also Proenza v.
State, 541 S.W.3d 786, 792 (Tex. Crim. App. 2017) (quoting Marin, 851 S.W.2d at
280) (holding that the phrase “fundamental error” in Rule 103(e) refers to these two
categories). A party is not required to preserve a complaint for the violation of these
two categories or rights. Marin, 851 S.W.2d at 279; see also Burg, 592 S.W.3d at
449.
A waivable-only right is one that the trial court has an independent duty to
implement unless the record reflects that it has been “‘plainly, freely, and
intelligently’ waived at trial.” Proenza, 541 S.W.3d at 792 (quoting Marin, 851
S.W.2d at 280). Examples of waivable-only rights are the right to the assistance of
counsel and the right to a trial by jury. Saldano, 70 S.W.3d at 888.
“[A]bsolute requirements and prohibitions,” such as personal jurisdiction,
subject-matter jurisdiction, and a penal statute’s compliance with the Texas
Constitution’s Separation of Powers provision are “systemic” and “essentially
independent of the litigants’ wishes.” Proenza, 541 S.W.3d at 792 (quoting Marin,
851 S.W.2d at 279); see Saldano, 70 S.W.3d at 888. Absolute requirements and
prohibitions cannot be forfeited or validly waived. Proenza, 541 S.W.3d at 792;
Marin, 851 S.W.2d at 279.
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Neither of the two fundamental error categories includes the admission or
exclusion of evidence. Saldano, 70 S.W.3d at 889. As stated by the Texas Court of
Criminal Appeals in Saldano: “We have consistently held that the failure to object
in a timely and specific manner during trial forfeits complaints about the
admissibility of evidence. This is true even though the error may concern a
constitutional right of the defendant.” Id.; see Freeman v. State, 230 S.W.3d 392,
407–08 (Tex. App.—Eastland 2007, pet. ref’d) (relying on Saldano). Because
Appellant did not timely object to Scott’s testimony on grooming, partial outcries,
and delayed outcries, he has not preserved his question for our review.
Appellant attempts to evade the preservation requirement by asserting that the
prosecutor, defense counsel, and the trial court, all played a part in permitting the
admission of improper evidence. With respect to the prosecutor, we note that,
“[o]rdinarily, a conviction is not overturned unless the trial court makes a mistake.”
Johnson v. State, 169 S.W.3d 223, 228–29 (Tex. Crim. App. 2005). Thus, most
appellate issues are directed at the conduct of the trial court rather than opposing
counsel. In some limited situations, misconduct by the prosecutor can be grounds
for overturning a conviction even though the trial court has done nothing wrong. Id.
at 229 (listing the following examples: if perjured testimony is knowingly used,
exculpatory evidence is suppressed, or the prosecutor has a conflict of interest
requiring recusal). The conduct of the prosecutor with respect to the evidence that
Appellant challenges does not constitute prosecutorial misconduct as contemplated
in Johnson.
With respect to his trial counsel, Appellant does not assert a claim for
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687–
88 (1984). In this regard, he asserts that a claim for ineffective assistance of counsel
would not be viable at this juncture because defense counsel’s trial strategy does not
appear in the record and trial counsel has not had an opportunity to explain her
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actions. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
Appellant has not cited any authority, and we have found none, that permits the
conduct of defense counsel to excuse the error preservation requirements short of
establishing a claim of ineffective assistance of counsel. To the contrary, the Fort
Worth Court of Appeals has noted that a claim of defective trial counsel performance
does not constitute fundamental error. Baker v. State, No. 02-14-00157-CR, 2015
WL 392640, at *2 n.2 (Tex. App.—Fort Worth Jan. 29, 2015, no pet.) (mem. op.,
not designated for publication) (“Ineffective assistance of counsel is not listed
among those errors considered fundamental.”).
With respect to the trial court, Appellant contends that the trial court breached
an independent duty to exclude Scott’s testimony. Appellant cites to Rule 103(d) of
the Texas Rules of Evidence, which provides that “[t]o the extent practicable, the
court must conduct a jury trial so that inadmissible evidence is not suggested to the
jury by any means.” TEX. R. EVID. 103(d).
In Marin, the Texas Court of Criminal Appeals noted that we have “an
adversarial process in which the trial judge, as institutional referee, enforces rules of
contention only when asked to do so by a litigant for whose benefit the rule exists.”
851 S.W.2d at 278. The court cited as an example the admission of evidence, noting
that the trial judge has no independent duty to exclude inadmissible evidence “on his
own.” Id. A trial court only has the sua sponte duty to enforce a waivable-only
right. Proenza, 541 S.W.3d at 797. As discussed above, the admission or exclusion
of evidence does not constitute a waivable-only right. Saldano, 70 S.W.3d at 889.
The trial court has no duty to enforce a forfeitable right “unless requested to
do so.” Proenza, 541 S.W.3d at 797 (quoting Marin, 851 S.W.2d at 278). Litigants
have the burden to assert a forfeitable right, not the trial judge. Proenza, 541 S.W.3d
at 797. Because the trial court did not have an independent duty to exclude the
testimony, and because the exclusion of evidence is not a fundamental error under
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Marin, Appellant was not excused from the requirement to preserve error in the trial
court.
Having determined that Appellant was required to preserve error in the trial
court, his failure to do so precludes the consideration of his evidentiary complaint
on appeal. Accordingly, we overrule Appellant’s three issues on appeal.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
December 30, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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