Frank Neumann, Jr. v. the State of Texas

Opinion issued August 28, 2025.

In the

Court of Appeals
for the

First District of Texas
————————————
NO. 01-24-00036-CR
———————————
FRANK NEUMANN, JR., Appellant
v.
THE STATE OF TEXAS, Appellee

On Appeal from the 264th District Court
Bell County, Texas1
Trial Court Case No. 2022-32285

1
The Texas Supreme Court transferred this appeal from the Court of Appeals for the
Third District of Texas. See TEX. GOV’T CODE ANN. § 73.001 (authorizing transfer
of cases between courts of appeals). Under the Texas Rules of Appellate Procedure,
“the court of appeals to which the case is transferred must decide the case in
accordance with the precedent of the transferor court under principles of stare
decisis if the transferee court’s decision otherwise would have been inconsistent
with the precedent of the transferor court.” TEX. R. APP. P. 41.3. The parties have
not cited, nor has our own research revealed, any conflict between the precedent of
the Third Court of Appeals and that of this court on any relevant issue.
MEMORANDUM OPINION

A jury convicted appellant, Frank Neumann, Jr., of two counts of aggravated

assault of a child younger than six years old. The jury assessed appellant’s

punishment at life imprisonment on both counts. On appeal, appellant argues the

trial court abused its discretion by determining the outcry statement of the

complainant was reliable and allowing the admission of testimony from the outcry

witness,2 the complainant’s mother, at trial. We affirm.

Background

A grand jury indicted appellant on two counts of aggravated sexual assault of

a child younger than six years of age, hereinafter known as “A.J.” (pseudonym).3

The indictment alleged in Count One that, “on or about July 18, 2015,” appellant

“intentionally and knowingly cause[d] the penetration of the sexual organ of A.J., a

child who was then and there younger than six years of age, by [his] finger.” Count

Two of the indictment alleged that appellant “intentionally and knowingly cause[d]

the penetration of the mouth of A.J., a child who was younger than six years of age,

by [his] sexual organ.” Appellant pleaded not guilty to both counts, and the case was

presented to a jury.

2
“Outcry” is a term of art used to describe the first disclosure statement that a child
complainant makes to an adult. TEX. CODE CRIM. PROC. art. 38.072; TEX. FAM.
CODE § 54.031.
3
We use pseudonyms to refer to the minor complainant and her family members. See
TEX. R. APP. P. 9.10(a)(3).
2
In a pre-trial hearing to determine the admissibility of A.J.’s outcry statement,

appellant objected to the admission of testimony from L. B. (A.J.’s mom) and Ashley

Lomas, a forensic interviewer, as outcry witnesses to A.J.’s report of sexual abuse.

With regard to Lomas, appellant’s counsel objected on the basis that “[w]e can’t

have both people repeating the same story.” In his brief, appellant argues that he

objected to the admission of L.B.’s testimony with his comment during argument

that “[w]e’re looking at two different things here. The first is the hearing outside the

presence of the jury for you to find if you believe so, that the statement is reliable

based on the time, contents, and circumstances of the statement.” Appellant offered

no further argument or objection with respect to L.B.’s testimony.

L.B. testified at the hearing that, at the time of the assault, A.J. was five years

old and living in Killeen, Texas with L.B., two siblings, and the appellant. Appellant

shared a child with L.B. who also lived with them at the house in Killeen at the time

of the reported abuse.

L.B. testified that, on September 5, 2020, when A.J. was ten years old, she

asked to speak to L.B. privately. L.B. testified that she and A.J. got into her car for

a drive so that they could speak. While in the car, A.J. reported being sexually

assaulted by appellant sometime in June 2015. L.B. testified that A.J. told her

“[appellant] touched her private with his fingers and put his private part in her

3
mouth.” A.J. went on to tell L.B. that appellant “threatened to kill someone if she

told anyone.”

L.B. described A.J.’s being sad and upset while reporting the abuse. {3 RR

207} L.B. deduced A.J.’s age—five years old—at the time of the assault because

A.J. told her it happened in “the big red house.” This referred to the home in Killeen

L.B. shared with appellant, A.J., and her two other children for six months in 2015

and 2016. A.J. reported the assault to L.B. the day after having her phone taken away

as punishment for chatting with a 24-year-old adult in an online chatroom.

Lomas also testified at the pre-trial hearing to the details of the sexual abuse

A.J. reported in a forensic interview. In the interview, A.J. identified appellant as

“her sister’s dad, Frankie,” and reported that appellant “[put] his fingers inside her

private part, which she stated was ‘used for pee,’” and that this happened about five

times. A.J. went on to say that appellant “would put his private part inside her

mouth,” that it “hurt her throat,” and that this happened about four times. Lomas

testified that A.J. reported being five years old when the abuse started and that it

ended after A.J.’s mother and appellant ended their relationship, when A.J. was six

years old.

At the conclusion of the pre-trial hearing, the trial court ruled the statement

A.J. made to L.B. would be admissible as an outcry, but that the statements made to

Lomas would not be admissible as an outcry because the statements were repetitious

4
of those made to L.B. Lomas thus testified only to the circumstances of the interview

and A.J.’s demeanor in the interview. Appellant did not object to the trial court’s

ruling.

The Trial Court’s Admission of the Statement

On appeal, appellant claims that the trial court abused its discretion when it

determined A.J.’s statement to L.B. was reliable as an outcry and admitted the outcry

statement as an exception to the hearsay rule, thereby allowing L.B. to testify as an

outcry witness. The State argues that appellant failed to object to the outcry

statement to L.B. We agree with the State that appellant failed to object.

A. Preservation of Error

Before addressing the merits of an issue on appeal, an appellate court should

consider whether the issue has been preserved, regardless of whether preservation

has been raised by the parties. Darcy v. State, 488 S.W.3d 325, 327-28 (Tex. Crim.

App. 2016). To preserve a complaint for appellate review, the record must show that

an objection was made to the trial court, that the grounds for relief were stated with

enough specificity, and that the trial court ruled upon the objection. TEX. R. APP. P.

33.1(a); Schmidt v. State, 612 S.W.3d 359, 365 (Tex. App.—Houston [1st Dist.]

2019, pet. ref’d). The party must explain to the trial court what he wants and why he

thinks he is entitled to it and do so clearly enough for the judge to understand it, and

5
at a time when the trial court is in a position to do something about it. Singleton v.

State, 631 S.W.3d 213, 217-18 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d).

Here, appellant made clear, well-presented arguments as to the circumstances

and content of A.J.’s forensic interview, persuading the trial court to limit Lomas’s

testimony to exclude A.J.’s hearsay statements. At most, appellant’s trial counsel

made a general statement that the trial court would need to determine whether the

outcry statement (without saying which one) “is reliable based on the time, contents,

and circumstances of the statement.” On appeal, appellant claims that this summary

of the general procedure that the trial court is to follow in its gatekeeping function

constituted an objection to the admission of L.B.’s testimony as an outcry witness.

This general recitation of the rule is not specific enough to preserve a complaint

about the reliability of A.J.’s outcry to L.B., and the specific grounds are not apparent

from the context4 where appellant’s arguments were specifically directed at A.J.’s

statement to Lomas and how that statement is inadmissible because it is duplicative

of the outcry statement to L.B. Because appellant did not make the same argument

and objection at trial regarding L.B. that he makes on appeal, we may not examine

4
A party may preserve error with a general objection, provided that the specific
grounds for the objection were apparent from the context. TEX. R. APP. P.
33.1(a)(1)(A). But see Heidelberg v. State, 144 S.W.3d 535, 542-43 (Tex. Crim.
App. 2004) (en banc) (holding general objection to appellant’s “Fifth Amendment
right” failed to preserve error admitting testimony about appellant’s post-arrest
silence).
6
his sole issue on appeal. See Compton v. State, 666 S.W.3d 685, 714 (Tex. Crim.

App. 2023) (holding that appellant failed to preserve error for review where

objection did not match complaint raised on appeal); see also TEX. R. APP. P. 33.1(a).

We therefore overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Amparo “Amy” Guerra
Justice

Panel Consists of Justices Guerra, Gunn, and Dokupil.

Do not publish. TEX. R. APP. P. 47.2(b).

7