Frank Villarreal Gomez v. The State of Texas — Memorandum Opinion by Chief Justice Christopher

Affirmed and Memorandum Opinion filed October 20, 2026.
In The
Fourteenth Court of Appeals
NO. 14-25-00568-CR
FRANK VILLARREAL GOMEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 20-CR-3311
MEMORANDUM OPINION
In this appeal from a judgment of conviction for aggravated sexual assault of
a child, appellant argues in two issues that the evidence is legally insufficient to
support the conviction and that the admission of testimony from a pediatrician
amounted to fundamental error. For the reasons given below, we overrule both issues
and affirm the trial court’s judgment.

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BACKGROUND
When she was eleven years old, the complainant attempted to end her own
life by locking herself in a bathroom and overdosing on medication. A sheriff’s
deputy was dispatched to the scene and spoke to the complainant’s mother, who
informed him that the complainant had made an outcry of sexual abuse.
The complainant was then referred to a forensic interviewer at the Children’s
Advocacy Center. The complainant told the forensic interviewer that when she was
much younger, between the ages of five and six, she was abused multiple times by
appellant, who is her mother’s former paramour. The complainant said that the abuse
occurred when she, her mother, and her siblings were staying temporarily at
appellant’s apartment. Appellant told the complainant on one occasion, after her
mother had already left the apartment, that she needed to take a shower. He followed
the complainant into the bathroom to watch, and when she finished, he touched her
vagina. On subsequent occasions, he digitally penetrated her vagina, and sometimes
he had sexual intercourse with her. The complainant said that the abuse happened
almost every day for around three months, until her family moved out of appellant’s
apartment.
Following the forensic interview, appellant was charged with continuous
sexual abuse of a child. He pleaded not guilty to that charge, and his case proceeded
to a trial by jury.
The mother testified during the trial that she met appellant when they were
both juveniles. Their relationship became sexual when she was twelve years old and
he was seventeen. The mother’s family pressed charges against appellant when that
relationship 	came 	to 	light, 	and 	he 	was 	eventually 	adjudicated 	delinquent.
Nevertheless, he continued to see the mother, and together they had a child, the
complainant’s oldest sister.

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The mother testified that her relationship with appellant was “off and on,” and
that all of her younger children, including the complainant, were from partners other
than appellant. The mother said that she eventually found herself homeless and that
appellant agreed to take her in, along with the children. She said that the complainant
would have been seven years old at that time, not five or six as the complainant had
claimed during her forensic interview.
The mother testified that she would work a few hours in the afternoon and
leave the children behind in appellant’s care. She also said that she would stay out
during the evening because she did not want to be around appellant. She “strongly
dislike[d]” appellant, and she admitted that on an earlier occasion, after appellant
had reported her to CPS about her being in an abusive relationship with another man,
she told her children to lie to authorities.
The complainant was sixteen years old at the time of trial, and her testimony
largely tracked her statements during the forensic interview. She said that appellant
told her to take a bath one evening, that he watched her from the toilet, and that he
got up and put his fingers in her vagina, which made her feel uncomfortable. She
also said that he had intercourse with her in the bedroom while her younger siblings
were sleeping on the bed. And she said that he also took her to the beach and he
abused her inside of a porta-potty. She was unsure of her exact age during this time,
but she indicated that she must have been between the ages of five and seven. She
also said that the abuse happened multiple times, for more than a month. She testified
that she did not disclose the abuse earlier because, having already witnessed her
mother’s history of domestic violence, she thought it was normal for men to hurt
women.
The complainant also testified about a lifetime of hardship. She said that she
has been bullied in school for years, and that her mother does not accept her because

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of her sexual orientation. She testified that she has battled depression and attempted
suicide 	on 	four 	or 	five 	occasions. 	She 	also 	testified 	that 	she 	suffers 	from
hallucinations: she claims that she sees dead people and that she hears voices from
shadowy figures.
Appellant took the stand in his own defense and denied all of the allegations
against him. He also testified that the mother and her children stayed with him for
no more than three weeks.
Defense counsel argued in closing statements that appellant was not a child
predator, and that the prosecution had simply tried to inflame the emotions of the
jury by digging up the old and improper relationship between appellant and the
mother when they were both juveniles. Counsel also argued that the mother and the
complainant were not credible. He emphasized that the mother had encouraged her
children to lie. He also suggested that the complainant’s allegations were the product
of her hallucinations, or alternatively, that they were a cry for help, given her
multiple suicide attempts, her problems with bullying, and the chaos and animosity
surrounding her own mother.
The 	jury 	ultimately 	rejected 	these 	defensive 	arguments 	and 	convicted
appellant of the lesser-included offense of aggravated sexual assault of a child.
SUFFICIENCY OF THE EVIDENCE
We begin with appellant’s sufficiency challenge, even though it appears last
in his brief, because if meritorious, this issue would afford him the greatest amount
of relief. See Roberson v. State, 810 S.W.2d 224, 225 (Tex. Crim. App. 1991) (per
curiam).
In a sufficiency challenge, a reviewing court must determine whether a
rational trier of fact could have found the essential elements of an offense beyond a

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reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
The offense of conviction here was aggravated sexual assault of a child, which can
be supported with proof of the following essential elements: (1) the complainant was
a child younger than the age of fourteen, and (2) appellant intentionally or knowingly
caused the penetration of the complainant’s sexual organ by any means, or he caused
the complainant’s sexual organ to contact the sexual organ of another person,
including his own. See Tex. Penal Code § 22.021(a)(1)(B)(i), (1)(B)(iii), (2)(B).
When deciding whether the prosecution satisfied its burden of proving these
elements beyond a reasonable doubt, we consider all of the evidence and resolve any
conflicts in favor of the verdict that was actually rendered. See Powell v. State, 194
S.W.3d 503, 506 (Tex. Crim. App. 2006).
The complainant here directly testified that appellant penetrated her sexual
organ with his hand and his sexual organ on multiple occasions when she was no
older than seven years of age. That testimony was sufficient by itself to support the
conviction. See Tex. Code Crim. Proc. art. 38.07 (the complainant’s uncorroborated
testimony is sufficient to support a conviction).
Appellant suggests in his brief that we should reach the opposite conclusion
because several circumstances made his conviction “uncertain,” such as the delayed
outcry and the mother’s admission that she once told her children to lie. But under
our standard of review, we cannot indulge any of these points, as they all lead to an
exculpatory inference that the jury was not obliged to make. See Melgar v. State,
593 S.W.3d 913, 922 (Tex. App.—Houston [14th Dist.] 2020), pet. dism’d, No. PD-
0243-20, 2022 WL 2240263 (Tex. Crim. App. 2022).
Appellant also suggests that the evidence is insufficient because a pediatrician
impermissibly bolstered the prosecution both in this case and in a completely
unrelated proceeding that this court recently considered. See Nixon v. State, No. 14-

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25-00392-CR, 2026 WL 3000523, at *6–8 (Tex. App.—Houston [14th Dist.] Oct.
6, 2026, no pet. h.) (mem. op., not designated for publication). Setting aside for a
moment that the record in the separate proceeding cannot be considered now, we
must note that the thrust of appellant’s argument is simply that the pediatrician’s
testimony should not have been admitted. That argument has no bearing in a
sufficiency analysis because our scope of review includes all of the evidence,
regardless of whether it was admitted properly or improperly. See Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). And even more to the point, the
pediatrician’s testimony need not even be considered in our sufficiency analysis here
because, as we previously stated, the complainant’s uncorroborated testimony was
sufficient by itself to support the conviction.
For all of the foregoing reasons, we conclude that there is sufficient evidence
to support every essential element of the offense beyond a reasonable doubt.
PEDIATRICIAN
After 	her 	forensic 	interview, 	the 	complainant 	submitted 	to 	a 	physical
examination by a nurse practitioner, and the findings were normal. Those findings
were reviewed by a pediatrician, who testified at trial that most injuries heal within
a month, and that the normal findings in this case were not unexpected given the
yearslong delay in reporting.
The pediatrician also testified that children do not have the best sense of time,
but if a child makes a claim of sexual abuse, the pediatrician still assumes that the
child is telling the truth, unless there are inconsistencies or obvious conflicts in the
child’s statements.
Appellant now raises a number of complaints regarding the pediatrician. He
contends that the pediatrician acted as an improper bolsterer who vouched for the

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truthfulness of the complainant. He contends that the pediatrician was a “deliberately
uninformed expert,” insofar as she did not examine the complainant, she did not
review the complainant’s forensic interview, and she did not even know that the
complainant had a history of hallucinations. And he contends that the pediatrician is
the same witness who supposedly recited contrived statistics in Nixon, to which we
briefly alluded above.
Appellant did not raise a single objection during the trial regarding the
pediatrician’s testimony. Nevertheless, appellant believes that the admission of the
pediatrician’s 	testimony 	may 	be 	challenged 	for 	the 	first 	time 	on 	appeal 	as
“fundamental error.”
In his opening brief, appellant referred to the fundamental error mentioned in
Rule 103(e) of the Texas Rules of Evidence. But in a subsequent letter brief,
appellant specifically abandoned any reliance on Rule 103(e), without providing any
alternative source of authority for his exception to the traditional rules of error
preservation. Because there is no common-law “fundamental error” exception to the
rules of error preservation, we understand appellant to simply be describing errors
encompassed by categories one and two of Marin v. State, 851 S.W.2d 275 (Tex.
Crim. App. 1993). See Proenza v. State, 541 S.W.3d 786, 793–95 (Tex. Crim. App.
2017) (“The fundamental errors described in Rule 103(e) and Jasper are simply
category-one and -two Marin errors.”).
Category one describes systemic or absolute requirements that can never be
waived, like the trial court’s jurisdiction. See Marin, 851 S.W.2d at 279. And
category two describes waivable-only rights that are “so fundamental to the proper
functioning of our adjudicatory process as to enjoy special protection,” like the right
to counsel or the right to a jury trial. Id. at 278–79. Most rights fall into a separate
third category, which encompasses “an array of rules which are optional with

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litigants,” like rules regarding the exclusion of hearsay and other evidence. Id. at
278. Rights under this third category, whether constitutional, statutory, or otherwise,
are forfeited by a failure to exercise them. Id.
When deciding whether a complaint implicates a right under category three
(which could be forfeited by inaction) or under a different category (which could not
be forfeited by inaction), the answer depends on the existence of a duty. See Proenza,
541 S.W.3d at 797. If the judge, as an institutional representative, has no duty to
enforce a right until requested to do so, then the right is subject to forfeiture by the
parties and falls within the third category of rights described by Marin. Id. But if the
law places a duty upon the judge to enforce a right sua sponte, then the right is
waivable only and falls within the second category. Id.
Appellant contends that his complaints fall within category two, but he has
not 	identified 	any 	duty 	that 	would 	have 	required 	the judge 	to 	exclude 	the
pediatrician’s testimony sua sponte.
We conclude that any error arising out of the pediatrician’s testimony
concerned category three. Because appellant did not object to any portion of that
testimony, all of his complaints were forfeited by inaction. See Saldano v. State, 70
S.W.3d 873, 889 (Tex. Crim. App. 2002) (considering a challenge under the Marin
framework and explaining that, even when an error may concern a constitutional
right, “we have consistently held that the failure to object in a timely and specific
manner during trial forfeits complaints about the admissibility of evidence”).
In another attempt to skirt the rules of error preservation, appellant contends
that he may raise his complaints for the first time on appeal under the authority of
Rogers v. State, 725 S.W.2d 350 (Tex. App.—Houston [1st Dist.] 1987, no pet.).
But because Rogers was decided by our sister court, it is not binding on us.
Moreover, it predates both Marin and Proenza, and our own court recently declined

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to apply it. See Gomez v. State, 729 S.W.3d 928, 937 (Tex. App.—Houston [14th
Dist.] 2026, no pet.). Adhering to that recent precedent, which is binding on us, we
conclude that appellant forfeited his appellate complaints by failing to object in the
trial court. Id. (“Multiple courts have held that error in the admission of improper
evidence must be preserved even when the evidence concerns an opinion about the
truthfulness of another witness.”).
CONCLUSION
The trial court’s judgment is affirmed.
/s/ 	Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Bridges and Boatman.
Do Not Publish — Tex. R. App. P. 47.2(b).