Banda v. State, NUMBER 13-19-00587-CR

CourtCourt of Appeals of Texas
Writing for the CourtMemorandum Opinion by Justice Silva
Decision Date20 May 2021
Docket NumberNUMBER 13-19-00587-CR


NUMBER 13-19-00587-CR


May 20, 2021

On appeal from the 197th District Court of Cameron County, Texas.


Before Justices Benavides, Hinojosa, and Silva
Memorandum Opinion by Justice Silva

Appellant Carlos Banda a/k/a Carlos Banda Jr. appeals his convictions of continuous sexual abuse of a child, a first-degree felony, indecency with a child by sexual contact, a second-degree felony, and aggravated sexual assault of a child, a first-degree felony. See TEX. PENAL CODE ANN. §§ 21.02, 21.11(a)(1), 22.021(a)(1)(B)(ii).

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By nine issues, which have been renumbered and reorganized, Banda argues: (1) an investigator with the Department of Family and Protective Services (Department) was improperly designated as the outcry witness because she was not the "first person" to whom T.B.,1 one of the complainants, made an outcry, and an investigator is not a "trusted" person under the outcry statute; (2) T.B., seventeen years old at trial, is not a child, and she cannot utilize the hearsay exception afforded by article 38.072 of the Texas Code of Criminal Procedure; (3) the trial court abused its discretion in admitting the lay witness testimony of T.B.'s therapist, who was not designated as an expert witness prior to trial and (4) improperly restrained Banda's ability to cross-examine T.B.'s therapist; (5) the trial court abused its discretion by permitting testimony from the detective which "arose out of lack of personal knowledge, improper opinions, and hearsay"; (6) the trial court erred by making inappropriate comments in the presence of the jury in violation of article 38.05 of the Texas Code of Criminal Procedure; (7) the trial court abused its discretion in "allowing attacks against [Banda] outside of notice given in [Rule] 404" when a State's witness testified that Banda watched pornography; (8) the trial court abused its discretion in denying Banda's request for a mistrial; and (9) the previous alleged errors cumulatively caused him harm. We affirm the judgment as modified.


Banda was arrested on charges of continuous sexual abuse of a child, aggravated sexual assault of a child, and indecency with a child by sexual contact. See id. The

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complainants in the case are T.B. and A.C., Banda's former stepdaughters. Banda was indicted on all three charges and pleaded not guilty.

A. Outcry Designation Hearing

Prior to trial, the trial court held an outcry designation hearing. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (permitting hearsay statements of certain abuse victims). J.M., T.B. and A.C.'s mother, testified that she and Banda were married from 2007 to 2012 and had one child together, C.Y.B. J.M. testified that she has five children in all: 17-year-old T.B., 16-year-old K.C., 14-year-old A.C., 12-year-old C.Y.B., and 3-year-old L.M. Prior to 2015, J.M. and her children resided in Brownsville.2 J.M. and her children now reside in Fort Worth with her husband, D.M.

J.M. testified that she first became aware of the allegations involving Banda after she confiscated A.C.'s tablet in April 2017. J.M. saw text messages on A.C.'s tablet, wherein A.C. claimed, among other things, she had been sexually abused. In early May 2017, J.M. confronted A.C., who told her that Banda "made her put his—his penis in her mouth," and A.C. described an incident that occurred around Halloween when she was in the first grade. A.C. revealed "it had happened" to her sister, T.B., too. J.M. said T.B. initially denied any allegations, but T.B. eventually said that Banda "had touched her and put his hands in her private part." J.M. testified she understood T.B. to mean that Banda had touched T.B.'s "breast." When asked if T.B. identified "any other parts," J.M. stated, "No."

Dolores Urzua, an investigator with the Department, testified she was assigned to the case on May 31, 2017, after law enforcement became involved. At the time, T.B. was

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fifteen years old and A.C. was eleven years old. Urzua testified that T.B. "made an outcry of sexual abuse," alleging her ex-stepfather, Banda, touched her breasts and genitals "over clothes and under clothes," forced her to perform oral sex on him, and "showed her pornography."

Banda argued Urzua could not be designated as the outcry witness for T.B. because Urzua was not the individual T.B. made the "the first outcry" to, and as a Department investigator, she was not a "trusted" person under the outcry statute. The State countered that Urzua was an appropriate outcry witness regarding allegations that Banda had touched T.B.'s female sexual organ, which T.B. only related to Urzua and was a different sex act than that which was related to J.M. The trial court designated Urzua and J.M. as outcry witnesses.

B. State's Case-in-chief

1. A.C.

At the time of trial, A.C. was fourteen years old and in the eighth grade. A.C. testified she could not remember when she first met Banda, because until Banda and her mother divorced, she thought he was her biological father.

A.C. said she was "six or seven" years old when Banda sexually assaulted her. A.C. testified that it happened around Halloween, and she remembered they had been eating cookies that were shaped like pumpkins. J.M. was either at work or at school. "I was in the room with my brother. We were watching Sponge Bob. [Banda] had called me. He said, 'Come here.'" The testimony that followed was brief:

[STATE:] So [Banda] calls you out to the living room. What do you remember when you get to the living room?

[A.C.:] It wasn't the living room.

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[STATE:] Oh, where? I'm sorry. Thank you for correcting me. Where did he call you out to?

[A.C.:] The dining room table.

[STATE:] And what did you see when you got to the dining table?

[A.C.:] Two water bottles and [T.B.].

. . . .

[STATE:] Or what is the next thing you remember?

[A.C.:] I was on my knees.

[STATE:] And how was [Banda]?

[A.C.:] He was sitting down.

[STATE:] And what was happening?

[A.C.:] I was sucking his penis.

A.C. said she did this while her sister watched. According to A.C., she and T.B. never spoke of it until 2017, after their mother found out.

A.C. testified that in April 2017, J.M. had taken away her tablet because she was "acting up." The tablet contained text messages between A.C. and her friends, wherein A.C. had opened up about sexual abuse involving Banda and expressed wanting to "overdose." J.M. did not speak to A.C. about the tablet's contents until May. When J.M. confronted A.C. during a walk, A.C. said she "started laughing, because [she] felt nervous and weird." A.C. said she eventually told J.M. what had happened and said she thought it had happened to T.B. too, which prompted J.M. to ask T.B.

On cross-examination, A.C. was questioned as to how she could have "completely forgotten" a single incident that occurred to her at the age of six, only to have it "pop[] up

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again later." A.C. maintained that the memory had only resurfaced after she was speaking to a friend who had first disclosed his own history of abuse.

2. T.B.

T.B. was seventeen years old and a senior in high school during trial. "I was in kindergarten when I first met [Banda]." T.B. testified that she, Banda, J.M., and A.C. resided in a fourplex in Cameron Park from the first grade to the third grade. "I remember grades. I don't remember my age," she explained.

T.B. testified she was in the first grade the first time Banda sexually assaulted her. "It was nighttime. He was putting us to bed, and my mom wasn't home. . . . He gave us kisses at night. And he gave a kiss to my sister, and then he gave me a kiss, but it wasn't just a goodnight kiss. . . . It was just long." T.B. said she went to sleep and was later awoken by Banda "shaking" her. T.B. was in the living room and could not recall how she ended up there. "[Banda] [p]ull[ed] off his pants, not all the way, but just enough. He pulled out his penis[,] and he told me to suck it." T.B. said she complied out of fear. T.B. testified that Banda said she would "end up in a foster care or in an orphanage" if she told anyone what he had done. T.B. said it was at the fourplex that Banda also "made [her] watch porn" in the family living room; T.B. said Banda played "CDs" depicting men and women having sex. T.B. testified that nothing would happen while he watched pornography alongside her. T.B. said incidents of sexual abuse continued until she was in the seventh grade3—despite Banda's assurances that each time would be the last.

When she was in the fourth grade, T.B.'s family moved to Brandy Wyne Apartments, and it was there that he orally penetrated her vagina. T.B. detailed one

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instance where Banda was "laying down on the bed," with his back against the bed, and she was "facing his penis" while he faced her vagina. T.B. described how Banda's tongue felt on her body. T.B. said Banda stopped after C.Y.B., who would have been four or five years old at the time, walked in on them.

It was at the Brandy Wyne Apartments that T.B. also witnessed Banda assault her sister. T.B. said, "It was just like every other time": Banda requested oral sex, T.B. declined, Banda insisted it would just be "one more time," and T.B. yielded. This time, however, Banda "got up and he said he'd be right back," and he returned with A.C., instructing A.C. to "suck[] his penis."

T.B. expounded on multiple incidents of oral penetration that occurred in the "house next to his brother's house," in Banda's car, and at "this house he was working at." T.B. said, however, there was only one instance of vaginal to penile penetration, and it happened at "the shack." T.B. testified that the shack consisted of an open big room: "There's a bed as soon as you walk in, TV stand, there was a TV, and in the back, there's a restroom." Although T.B. said Banda had touched her "countless times" at the shack, she testified to one...

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