Aureliano Sanchez Galvan v. the State of Texas ( 2024 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
AURELIANO SANCHEZ GALVAN, § No. 08-23-00162-CR
Appellant, § Appeal from the
v. § 327th Judicial District Court
THE STATE OF TEXAS, § of El Paso County, Texas
Appellee. § (TC# 2021D01588)
MEMORANDUM OPINION
A jury found Appellant Aureliano Sanchez Galvan guilty of continuous sexual abuse of a
child under fourteen years of age. In three issues on appeal, Appellant challenges the trial court’s
evidentiary rulings. In a fourth issue, he asserts the trial court erred by denying his request for a
jury shuffle. In his final issue, Appellant asserts the cumulative harm of the trial court’s errors
affected his substantial rights. For the reasons set forth below, we affirm the trial court’s judgment.
BRIEF BACKGROUND
D.M. 1, the minor complainant in this case, complained that Appellant sexually abused her
over the span of multiple years at two different homes in which D.M. resided over time. D.M.
1
To protect a child’s identity, we refer to the child by initials rather than by name. See Tex. R. App. P. 9.10.
alleged that Appellant, who was in a relationship with D.M.’s aunt, would visit D.M.’s home, ask
to take a shower, then enter into whatever bedroom D.M. was in and sexually assault her. In
addition to D.M.’s testimony, the jury heard from several witnesses, including D.M.’s mother, law
enforcement officers, and witnesses who testified about extraneous offenses involving Appellant
and two other young girls. The jury also heard a recording of a jail call between Appellant and his
wife. Because Appellant does not raise an issue regarding the sufficiency of the evidence to support
his conviction, we do not discuss the facts in greater detail. Additional facts necessary for
disposition of his appellate issues are recited in the relevant analysis of each issue below. See Tex.
R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as
practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).
TESTIMONY OF OUTCRY WITNESSES
In his first issue, Appellant asserts the trial court erred by allowing two witnesses (the
complainant’s mother and Detective Smith) to testify as outcry witnesses. The State contends
Appellant did not preserve this issue for our review.
A. Error preservation
The State argues that to preserve error on the ground that a witness improperly testified as
an outcry witness, Appellant was required to timely and specifically object and, unless allowed a
running objection, must continue to object each time the witness offers the improper outcry
testimony. Beckham v. State, 29 S.W.3d 148, 153-54 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d); see also Johnson v. State, No. 08-05-00012-CR, 2006 WL 2635380, at *4 (Tex. App.—El
Paso Sept. 14, 2006, pet. ref’d) (not designated for publication) (holding same); Tex. R. App. P.
33.1 (requiring timely objection to trial court).
2
(1) Background
The trial court conducted a pretrial outcry hearing at which the State presented the
testimony of Aurora (the complainant’s mother) and Detective Smith. After their testimony,
defense counsel argued the State did not satisfy its burden to prove that Aurora and Detective
Smith “were the first adults to whom the child . . . described the incident that happened[.]” More
specifically, defense counsel asserted that neither Aurora nor Detective Smith could pinpoint the
specific event to which they were the outcry witness. The trial court found both witnesses reliable
and allowed them to testify as outcry witnesses at trial. On the morning of trial, Appellant filed a
motion to reconsider and a renewed objection to the designation of Aurora and Detective Smith as
outcry witnesses. After opening statements, the trial court heard the renewed objection but did not
alter its ruling. When called as witnesses before the jury, both Aurora and Detective Smith testified
about what they were told by D.M.
The complainant, D.M., testified the sexual abuse began when she was approximately six
or seven years old. 2 In 2020, D.M. made her first statement to her mother, Aurora, who
immediately called the police. D.M. was interviewed by Detective Claudia Azar at the police
station. 3 Later, Detective Lourdes Smith was assigned the case and she also interviewed D.M. The
State gave notice of its intent to call outcry witnesses under seal and the document is not included
in the record on appeal. However, on appeal, Appellant does not contend he was unaware of the
State’s intention to call Aurora and Detective Smith as outcry witnesses at trial.
2
D.M. was born on November 21, 2005. Trial commenced in early 2023.
3
Detective Azar was a patrol officer when D.M. gave her statement at the police station. By the time of trial, she was
a detective.
3
(2) Analysis
Texas Rule of Evidence 103(b) provides that “[w]hen the court hears a party’s objections
outside the presence of the jury and rules that evidence is admissible, a party need not renew an
objection to preserve a claim of error for appeal.” Tex. R. Evid. 103(b); see also Lopez v. State,
253 S.W.3d 680, 684 (Tex. Crim. App. 2008) (holding that to preserve error “an objection must
be made each time inadmissible evidence is offered unless the complaining party obtains a running
objection or obtains a ruling on his complaint in a hearing outside the presence of the jury”). Here,
Appellant raised his objections to Aurora and Detective Smith before trial and obtained a ruling
denying his objections. Therefore, we conclude that he preserved his complaint for our review.
Accordingly, we address the merits of his complaint.
B. Proper outcry witness
Texas Code of Criminal Procedure Article 38.072 “creates a statutory exception to the
hearsay rule and allows the first adult to whom a child makes a statement describing a sexual
assault to testify to the child’s outcry, if the statute’s provisions are met.” In re C.E.S., 400 S.W.3d
187, 192 (Tex. App.—El Paso 2013, no pet.); see also Tex. Code Crim. Proc. Ann. art. 38.072
(Hearsay Statements of Certain Abuse Victims). “Procedurally, the State cannot introduce the
statement until the trial court holds a hearing outside the presence of the jury to determine whether
the statement is reliable based on the time, content, and circumstances of the statement.” Kappes
v. State, No. 08-22-00095-CR, 2023 WL 1972015, at *4 (Tex. App.—El Paso Feb. 13, 2023, pet.
ref’d.); see Tex. Code Crim. Proc. Ann. art. 38.072, § 2-a(b)(2). “We review a trial court’s
determination of whether an outcry statement is admissible under Article 38.072 for an abuse of
discretion.” Kappes, 2023 WL 1972015, at *4.
4
“The proper outcry witness is not the first adult to whom the child made the outcry, but
instead the first adult to whom the child described the abuse in some discernible way.” C.E.S., 400
S.W.3d at 192. The child’s outcry “must be more than words which give a general allusion that
something in the area of child abuse was going on.” Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim.
App. 1990) (en banc).
In picking the particular wording of the “first person” requirement, the legislature
was obviously striking a balance between the general prohibition against hearsay
and the specific societal desire to curb the sexual abuse of children. . . . The portion
of the statute catering to the hearsay prohibition demands that only the first person
is allowed to testify. But the societal interest in curbing child abuse would hardly
be served if all that first person had to testify to was a general allegation from the
child that something in the area of child abuse was going on at home. Thus . . . any
statement that arguably relates to what later evolves into an allegation of child abuse
against a particular person will [not] satisfy the requisites of [Article 38.07].
Id. To be the outcry witness, the victim must have described the offense to that witness. Id. In other
words, “the specificity requirement is generally met when a victim sufficiently describes the how,
when, and where of the abuse.” Kappes, 2023 WL 1972015, at *5 (citation omitted).
(1) Aurora’s testimony
Appellant asserts the trial court erred by allowing Aurora to testify as an outcry witness
because the statement D.M. made to Aurora was too vague to qualify as a “statement about the
offense.”
During Aurora’s direct examination, she was asked by the State about the day D.M. made
her statement:
Q. What happens to [D.M.] when she does something she’s not supposed to and
she gets punished? What’s her punishment?
A. I don’t let her go out, and I take her cell phone away.
Q. Now, when you asked her if she had done her chores, what did she say?
5
A. That she had done it, but that I was asking her to do too much.
Q. What happened next?
A. I spoke to her strongly, and that’s when she told me what had happened to her.
She told me that I did not understand her.
Q. What did you observe in her behavior when she was telling you that?
A. She would cry.
Q. What did you say in response?
A. I just asked her why she had not told me about this, and I hugged her.
Q. What did she tell you in detail, please?
A. That she was afraid to tell me because he had told her not to tell anybody
because I did not have my residence and I could be deported.
Q. What did [D.M.] tell you the defendant did to her?
A. I’m sorry. I did not understand the word.
Q. It’s okay. What did [D.M.] tell you that the defendant did to her? [Emphasis
added]
A. She has not wanted to tell me. She just told me that he had – he had violated
her, but that was it. [Emphasis added]
Q. And what was your reaction when she told you that he had violated her?
A. I felt impotent.
. . .
Q. After [D.M.] told you this, what did you do?
A. Support her, be with her.
Q. And you said earlier you went to the police?
A. Yes. We went to file a complaint.
6
On cross-examination, Aurora was asked about the statement she gave to Detective Smith:
“you stated that [D.M.] told you that [Appellant] had raped her when she was 6 or 7 years old.”
Aurora replied, “yes.” The statement itself was not admitted into evidence.
D.M.’s comments to Aurora did not include specific details; she did not describe the “how,
when, and where” of the abuse. Calderon v. Texas, 2021 WL 5027754 (Tex. App.—El Paso 2021,
pet. ref’d) (not designated for publication); see also Smith v. State, 131 S.W.3d 928, 931
(Tex. App.—Eastland 2004, pet. ref’d) (concluding that “child’s statement to his mother that
[Appellant] had been performing oral sex on him did not relay any specific details about the
charged offense”). 4 Therefore, we conclude the trial court erred by allowing Aurora to testify as
an outcry witness.
(2) Appellant’s renewed objection to Detective Smith’s testimony
Only Aurora and Detective Smith testified at the pretrial outcry hearing. On the morning
of trial, Appellant filed a motion to reconsider and a renewed objection to the designation of Aurora
and Detective Smith as outcry witnesses. In his renewed objection to both Aurora and Detective
Smith, Appellant stated as follows:
During the course of trial preparation, it became apparent to defense counsel that
D.M. gave a lengthy interview about her alleged sexual abuse to the first police
officers she encountered, El Paso Police Officers Claudia Azar (3245) and
Dominique Lopez (3409), on August 30, 2020. . . . This occurred when [Aurora]
did a walk-in report at the Pebble Hills Regional Command Center and they spoke
to patrol officers. Wherefore, [defense counsel] respectfully renews his objection
to the State’s designation of Detective Lourdes Smith as an appropriate outcry
witness and that any statements made to Detective Smith by D.M. only be allowed
for impeachment purposes and not substantive evidence under article 38.072.
4
During opening statements, defense counsel alluded to the outcry to Aurora by telling the jury that D.M. told her
mother, “I’ve been sexually assaulted by [Appellant].” On appeal, the State contends this opening statement “opened
the door” to Aurora’s testimony; therefore, the trial court did not err by allowing her to testify as an outcry witness.
We disagree. Prior to appellant’s opening statement, the trial court had already ruled Aurora to be reliable and allowed
her to testify as an outcry witness at trial.
7
The trial court considered the objection but did not alter its ruling. On appeal, Appellant
asserts the trial court erred by allowing Detective Smith to testify as an outcry witness because the
offenses D.M. reported to Detective Smith were not separate and distinct from the offenses D.M.
previously reported to Detective Azar.
“Outcry testimony is event-specific not person-specific and, as such, multiple outcry
witnesses may testify when the outcry statements are about different events and not a repetition of
the same events.” C.E.S., 400 S.W.3d at 192; see also Lopez v. State, 343 S.W.3d 137, 140
(Tex. Crim. App. 2011) (“Hearsay testimony from more than one outcry witness may be
admissible under article 38.072 only if the witnesses testify about different events. There may be
only one outcry witness per event.”). “If the child victim first described one type of abuse to one
outcry witness, and first described a different type of abuse to a second outcry witness, the second
witness could testify about the different instance of abuse.” Tear v. State, 74 S.W.3d 555, 559
(Tex. App.—Dallas 2002, pet. ref’d). Therefore, we compare the trial testimony of Detective Azar
to that of Detective Smith to determine whether the trial court abused its discretion by allowing
Detective Smith and Detective Azar to testify about D.M.’s statements. 5
(3) Detective Azar’s testimony
On August 30, 2020, Detective Claudia Azar was a patrol officer when she met with D.M.
and Aurora at the police station on the day they came to report the assault. Detective Azar testified
D.M. told her the following:
So what she told us was they lived at 426 Pendale with her mother and her siblings.
[Appellant] is her aunt’s spouse. So he would often go visit them and would ask to
take a shower. So they were comfortable to let him take a shower at their residence.
So she stated that the first time, she was asleep in her mother’s bedroom and, when
5
Detective Azar’s written statement was neither admitted into evidence when Appellant renewed his objection to
Detective Smith’s testimony nor when Detective Azar testified at trial. Therefore, for the purpose of our analysis, we
compare the trial testimony of both detectives.
8
she woke up, he was standing next to her with a T-shirt on, exposing his genitals.
At that time he tried to take off her clothes. She told him no and tried to stop him
by kicking him. And then he ended up mounting her and was able to take off her
clothes and put his erect penis into her. She told us that this happened about five to
six times . . . for about two years.
. . .
Then they moved to 12341 Tierra Inca. Two years after they moved to Tierra Inca,
he ended up visiting them. Again, she was–he asked to take a shower. She was in
the–in Mother’s room, and he attempted again to try and assault her, but she–she
was able to kick him off, so he was unsuccessful. She stated that it happened another
time at the same residence at Tierra Inca but was unsuccessful that time as well.
Detective Azar said that when she was first dispatched, it was for the offense of indecency
with a child, but after speaking with D.M., she classified the offense as sexual assault.
On cross-examination, Detective Azar said D.M. told her the abuse started when she was
nine years old when she lived in a house located at 426 Pendale. D.M. told her that Appellant
“covered her mouth and grabbed her legs,” “he was able to stick his penis inside of her,” and this
“happened five or six times.” D.M. did not tell Detective Azar that Appellant touched her with his
hand. D.M. told Detective Azar that Appellant tried twice to take off her clothing and sexually
assault her when she lived at the Tierra Inca house, but she was able to fight him off.
(4) Detective Smith’s testimony
Detective Lourdes Smith testified she was assigned the aggravated sexual assault case on
August 31, 2020, and she met with D.M. on September 10, 2020. Detective Smith testified D.M.
told her the following:
The first time that she told me something happened, she said that she was 9 years
old. [Appellant] used to go shower at their house, and he used to use the same–the
restroom that was inside of her mom’s room, which she would fall asleep in. And
she said that the first time that it ever happened, she was asleep in there and he had
taken a shower. He came out, and she woke up to him exposing himself, his penis.
And then she said she got up from the bed because she was scared and he put her
back on the bed and–the way she said it, she said that he was able to get inside her.
9
. . . And she did say that he put his dick in her vagina and she couldn’t scream
because he did cover her mouth. . . . At 426 Pendale, it happened–she said five or
six times. . . . She said that at that house she saw white stuff on the bed one time.
She said stuff did happen there at 12341 Tierra Inca. She said she was 11 or 12
when something happened, and she said it happened two times and they were the
same. She said the only difference between those two times was that one time there
was white stuff coming out of his penis.
. . .
Yes. So she said that in [t]his house she actually did have her bedroom, but the
bedroom was next to the restroom and [Appellant] would also ask Mom, “Hey, can
I shower?” same as the other house. And in this bedroom she was able to close the
door, but it wouldn’t lock. So she would actually put a shoe, and he would just
pretty much force it off and go inside.
. . .
So pretty much, when he came inside, he looked at her and he laughed. And then
he told her that if she screamed, that something was going to happen to her mom.
And he–that he said, quote/unquote, “You already know what to do.”
And she sat up–as soon as he walked in, I guess because she got startled, she sat
up, and he pulled her toward him and he penetrated her vagina with his penis.
. . .
She said that he did penetrate her with his penis and then he pulled his penis out
and he inserted three fingers in her vagina. And this is when she did see his–the
white stuff come out of his penis.
Detective Smith said that according to D.M., D.M. had been continuously raped from 2014
through 2017.
(5) Analysis
D.M.’s testimony concerned assaults at two addresses. Her detailed statements to both
detectives about what happened at the Pendale residence involved the same event (involving
Appellant exposing his genitals and penetrating D.M. with his penis). We therefore conclude the
10
trial court erred by allowing both detectives to testify about the same event at the Pendale
residence.
However, the testimony regarding what happened at the Tierra Inca residence differed.
D.M. told Detective Azar Appellant attempted to assault her, but she gave no details. D.M.’s
statement that Appellant tried unsuccessfully to assault her amounted to no more than a general
allusion or insinuation that a second sexual assault had occurred. In contrast, D.M. first provided
details about penetration occurring at the Tierra Inca residence during Detective Smith’s interview.
D.M. told Detective Smith that Appellant “penetrate[d] her with his penis and then he
pulled his penis out and he inserted three fingers in her vagina.” Thus, the trial court could have
concluded that D.M’s first outcry regarding both digital and penile penetration occurring at the
Tierra Inca residence did not occur until her interview with Detective Smith, when she provided
more than a general insinuation of sexual abuse. See Polk v. State, 367 S.W.3d 449, 453
(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (complainant made detailed outcry to her adult
brother about Appellant’s contact with her vagina; complainant did not reveal to her brother that
Appellant also had touched her anus in the same encounter; complainant first offered details about
Appellant’s contact with her anus during her subsequent conversation with her mother); Josey v.
State, 97 S.W.3d 687, 693 (Tex. App.—Texarkana 2003, no pet.) (concluding that mother was
proper outcry witness for act of oral contact, but forensic interviewer was proper outcry witness
for act of digital penetration).
Because D.M. first described two different types of abuse—digital and penile penetration
at the Tierra Inca residence—to a second outcry witness (Detective Smith), the second witness
could testify about the different types of abuse. See Tear, 74 S.W.3d at 559. Therefore, we
conclude the trial’s decision to allow Detective Smith to testify was not an abuse of discretion.
11
C. Harm analysis
Having found that the trial court erred in allowing Aurora to testify as an outcry witness
and in allowing both detectives to testify as outcry witnesses about what happened at the Pendale
residence, we must conduct a harm analysis to determine whether the trial court’s errors affected
Appellant’s substantial rights. See Tex. R. App. P. 44.2(b) (“Any other error, defect, irregularity,
or variance that does not affect substantial rights must be disregarded.”). The erroneous admission
of hearsay testimony under Article 38.072 is non-constitutional error. See Nino v. State, 223
S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Improper admission of
evidence is not reversible error if the same or similar evidence is admitted without objection at
another point in the trial. “In cases involving the improper admission of outcry testimony, the error
is harmless when the victim testifies in court to the same or similar statements that were improperly
admitted or other evidence setting forth the same facts is admitted without objection.” Gibson v.
State, 595 S.W.3d 321, 327 (Tex. App.—Austin 2020, no pet.); see also West v. State, 121 S.W.3d
95, 105 (Tex. App.—Fort Worth 2003, pet. ref’d) (holding error in admitting outcry testimony did
not influence jury’s verdict or had but a slight effect because complainant provided detailed
testimony regarding the offense); Thomas v. State, 1 S.W.3d 138, 142 (Tex. App.—Texarkana
1999, pet. ref’d) (holding error in determining child complainant’s mother was proper outcry
witness but admitting her testimony about complainant’s statements of sexual abuse by defendant
was harmless where record was replete with testimony from witnesses other than mother
concerning complainant’s statements about offense); Tex. Code Crim. Proc. Ann. art. 38.07(a),
(b)(1) (conviction is supportable by uncorroborated testimony of victim 17 years of age or
younger).
12
We first note, as stated above, that D.M.’s statement to Aurora did not include specific
details, i.e., the “how, when, and where” of the abuse. On the other hand, D.M. testified at trial
without objection to details of the abuse. D.M. testified that while at the Pendale residence,
Appellant exposed his “private part” to her and touched her vagina with his fingers under her
clothes while he held himself and moved his hand “back and forward.” She said this happened
more than ten times, but she could not remember how old she was. D.M. stated she was about eight
years old when the family moved to the Tierra Inca residence. D.M. said Appellant would expose
himself, touch “her privates” with his hand under her clothes, take her clothes off, and “put his
private part in” her. She said he raped her more than once, but she could not remember how many
times. In addition to D.M.’s testimony, Detective Azar testified without objection about what D.M.
told her. After examining the record as a whole, we conclude the trial court’s error in admitting
Aurora’s testimony and in allowing both detectives to testify about the same events at the Pendale
residence did not have a substantial and injurious effect or influence in determining the jury’s
verdict.
D. Conclusion
For the reasons stated above, we overrule Appellant’s first issue.
CROSS-EXAMINATION OF D.M.
In his second issue, Appellant asserts the trial court erred when it prevented him from cross-
examining D.M. about the circumstances leading up to and surrounding her outcry to Aurora.
Appellant contends the purpose of the questioning was to explore D.M.’s motives for making her
outcry when she did.
13
A. Background
Before trial, the court granted the State’s motion in limine regarding “[a]ny evidence of
previous sexual misconduct on the part of any witness for the State of Texas until such time as the
State of Texas has had an opportunity to ascertain whether such evidence is in violation of Texas
[Rule of Evidence] 412.” During opening statements, defense counsel informed the jury as follows:
[The State] told you that [D.M.]–she’s 17 years old. She’s going to turn 18 this
year. Back in 2020, when she was 15, she was getting into a lot of trouble. She was
being disrespectful at home. She was–
The State interrupted with an objection that “[t]his was covered in our motion in limine,” and the
trial court instructed counsel to inform the jury only “that there was a motivation or reason why
[D.M.] made the outcry. And leave it at that and they can fill in the blanks later when you provide
them with evidence[.]” Defense counsel then told the jury,
You’re going to hear that [D.M.] and her mother were having issues and that they
had a very serious conversation about these issues. And during that conversation,
[D.M.] told her mom, “You don’t know what I’ve been through. You don’t know
about my life,” and that her mom–and at that point, [D.M.] told her mother, “I’ve
been sexually assaulted by [appellant],” that her mom–they had a brief
conversation–that her mom took her to the police station to report it. And that
happened in August of 2020. All right?
During Aurora’s cross-examination, defense counsel asked Aurora about the circumstances
under which D.M. made her outcry:
Q. Now, what was this argument about?
A. Because I had punished her and I took away the cell phone.
Q. Okay. And that’s what’s on your statement [to the police]; right? That you had
grounded her and you had taken her cell phone away from her; right?
A. Yes.
Q. Why was the reason – what was the reason that you took [D.M.’s] cell phone
away from her?
14
A. Because she did not do the housework that I had told her to.
Q. Okay. Now, you – you were present when [D.M.] provided her statements to
the detectives; correct?
A. Yes. Everything was spoken in English.
Q. Okay. Well, isn’t it true that the reason that you actually grounded [D.M.] was
because she was talking to a boy?
. . .
Q. So the real reason that you grounded [D.M.] is because she was talking to a
boy; right?
A. I don’t remember.
Q. Okay. So you don’t remember that in that occasion [D.M.] told you that a guy
tried to grab her . . . [State’s objection overruled]
Q. She told you that a guy tried to grab her and that they both started talking about
sex. You don’t remember [D.M.] telling you that?
A. I don’t remember.
Q. And you don’t remember that that’s when you got very upset with her for
talking about sex with that guy?
A. It was because she did not do the housework.
. . .
Q. Okay. So let me rephrase the question, because I’m not asking you if you
understand something during the interview. I’m asking you: If [D.M.] say
[sic] that you had got mad at her for talking about sex with a – another boy,
that is not true or is that true?
A. I don’t remember.
Before defense counsel cross-examined D.M., the trial court revisited its earlier decision
about questioning D.M. about the circumstances leading up to her outcry. Defense counsel stated:
15
One of them [referring to the State’s motion in limine] is any, I guess, sexual
misconduct and also bad acts and all that. So I anticipate that when I ask around
the–I guess the argument that the complaining witness had with her mom, the
reason for that is because she was caught talking about sex with another male
individual.
The court ruled:
Yeah. I don’t–I’m not going to allow that. I mean, at this point, I think the rule on
that is pretty clear. And to suggest that a teenager who is still underage, who is the
alleged victim in a case like this, any kind of sexual impropriety, even if they were
consensual matters, it just would be wholly inappropriate. I’m not going to allow
it.
Defense counsel responded:
And, Your Honor, I would like to note my objection for the record. We’re basing
this on Rule 412. And it’s correct, there is a specific prohibition that in this type of
cases [sic] any evidence of the victim’s past sexual behavior or any specific
instances of the victim’s past sexual behavior are not allowed, but it has a bunch of
exceptions as well. And one specific exception is if it relates to the victim [sic]
motive or bias. And I think this is what [co-defense counsel] was trying to get on
his opening statement. I think there’s [a] strong relationship between the time that
she chose to come out with this. It can be–the jury can determine that this–that the
time that she chose to make these allegations were very convenient while she was
getting in trouble for talking about sex with another individual and to deviate the
attention or whatever consequences were going to be for the conduct that she was
being engaged with [sic] at the time.
B. Error preservation
We first address the State’s contention that Appellant did not preserve this issue for our
review because he failed to make an offer of proof as to the substance of D.M.’s testimony. Texas
Rule of Evidence 103 details how to properly make an offer of proof to excluded testimony at trial:
“[a] party may claim error in a ruling to admit or exclude evidence only if the error affects a
substantial right of the party and, . . . if the ruling excludes evidence, a party informs the court of
its substance by an offer of proof, unless the substance was apparent from the context.” Tex. R.
Evid. 103(a)(2). “The offer of proof may be in question-and-answer form or in the form of a
16
concise statement by counsel.” Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009).
However, Rule 103 is distinct from Texas Rule of Appellate Procedure 33.1, which imposes the
requirement of making a specific request, objection, or motion stating “the grounds for the ruling
that the complaining party sought from the trial court with sufficient specificity to make the trial
court aware of the complaint, unless the specific grounds were apparent from the context” to
preserve error on appeal. Tex. R. App. P. 33.1(a)(1)(A).
In Holmes v. State, the Court of Criminal Appeals “recognized a distinction between the
general rule in Rule 103(a)(2) and the case in which the defendant is not permitted to question a
State’s witness about matters that might affect the witness’s credibility.” 323 S.W.3d at 168.
In the latter case, the defendant need not show what his cross-examination of the
witness would have affirmatively established; he must merely establish what
general subject matter he desired to examine the witness about during his cross-
examination and, if challenged, show on the record why such should be admitted
into evidence. In such a case the trial court’s ruling has prevented a defendant from
questioning a State’s witness about subject matters which affect the witness’s
credibility, that is, matters which might show malice, ill feeling, ill will, bias,
prejudice, or animus. The distinction between these kinds of cases may have been
blurred by the similarity of language in two expressions: the credibility of a
witness’s testimony and a witness’s credibility. The former expression refers to the
substance of the evidence; the latter refers to personal characteristics of the witness.
Id. The Court then clarified the exception:
[W]here the defendant, in cross-examining a State’s witness, desires to elicit subject
matters that tend to impeach the witness’s character for truthfulness–for example,
to show malice, ill-feeling, ill-will, bias, prejudice, or animus on the part of the
witness toward the defendant–in order to preserve the issue for appellate review, he
is not required to show that his cross-examination would have affirmatively
established the facts sought, but merely that he desired to examine the witness with
regard to those specific subject matters that tend to impeach the witness during his
cross-examination.
Id. at 170.
17
In this case, Appellant did not make an offer of proof under Rule 103(a)(2). However,
pursuant to Rule 33.1(a)(1)(A), he notified the trial court of his desire to cross-examine D.M. about
the circumstances of her argument with her mother, which in turn led to D.M.’s outcry. Appellant
explained his line of questioning was not meant to violate Rule 412’s prohibition against eliciting
evidence of D.M.’s past sexual behavior. See Tex. R. Evid. 412(a)(2) (“specific instances of a
victim’s past sexual behavior” “is not admissible in a prosecution for sexual assault, aggravated
sexual assault, or attempt to commit sexual assault or aggravated sexual assault”). Instead, he
sought to elicit evidence under the exception to Rule 412(a)(2)—testimony about why she made
the outcry when she did—for the purpose of establishing her motive for the outcry. See Tex. R.
Evid. 412(b)(2)(C) (“Evidence of specific instances of a victim’s past sexual behavior is
admissible if . . . the evidence . . . relates to the victim’s motive or bias[.]”). We conclude that
Appellant was not attempting to challenge “the credibility of” D.M.’s testimony by exploring her
past sexual behavior (the substance of the evidence). See Holmes, 323 S.W.3d at 170. Instead,
Appellant’s attempted scope of questions was aimed at D.M.’s credibility as a witness (the
“personal characteristics of the witness”). Id. at 169 Therefore, we conclude that Appellant
preserved his issue for our review pursuant to Texas Rule of Appellate Procedure 33.1.
Accordingly, we next consider the merits of his complaint.
C. Did the trial court err
“The scope of appropriate cross-examination is necessarily broad.” Carroll v. State, 916
S.W.2d 494, 497 (Tex. Crim. App. 1996). A defendant may cross-examine a witness on any subject
“reasonably calculated to expose a motive, bias or interest for the witness to testify.” Id. By
limiting the cross-examination of D.M. regarding her possible motive for making her outcry to her
mother, the trial court denied the jury the thrust of Appellant’s defense theory—that D.M. had a
18
motive to fabricate her outcry against him—thus depriving the jury of the ability to make an
informed decision regarding the weight to accord D.M.’s testimony. Therefore, we conclude the
trial court erred by limiting Appellant’s cross-examination of D.M. We next consider whether
Appellant was harmed by the error.
D. Harm analysis
For the first time on appeal, Appellant asserts his constitutional right to confront a witness
was violated and this court should apply a three-prong test to determine harm. See Shelby v. State,
819 S.W.2d 544 (Tex. Crim. App. 1991) (en banc) (applying three-prong harm analysis to violation
of Confrontation Clause). 6 However, Appellant did not raise an objection based on the
Confrontation Clause before the trial court. The trial court considered Appellant’s argument under
Rule of Evidence 412, not the Constitution; thus, Appellant has not preserved his constitutional
complaint for our review. See Merrick v. State, 567 S.W.3d 359, 369 (Tex. App.—Ft. Worth 2018,
pet. ref’d) (holding same). We therefore evaluate this error as nonconstitutional and evaluate harm
based on whether it affected appellant’s substantial rights.
Nonconstitutional error that does not affect an accused’s substantial rights is harmless and
must be disregarded. Tex. R. App. P. 44.2(b). Substantial rights are not affected if the Court, based
on the record as a whole, has a fair assurance that the erroneous exclusion of evidence either had
no influence or only a slight influence on the jury. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.
6
The three prongs of the test are as follows. First, the appellate court must assume that the damaging potential of the
cross-examination was fully realized. Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991) (en banc). Second,
with that assumption in mind, the appellate court must review the error in connection with the following factors: (1)
the importance of the witness’s testimony in the prosecution’s case; (2) whether the testimony was cumulative; (3) the
presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the
extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution’s case. Id. Third, in
light of the first two prongs, the appellate court must determine whether the error was harmless beyond a reasonable
doubt. Id.19
App. 2002). In making our assessment, we consider everything in the record, the nature of the
evidence supporting the verdict, the character of the alleged error, and how it relates to other
evidence in the record. Id. We also may consider the jury instructions, the State’s theory and any
defensive theories, closing arguments, and voir dire, if applicable. Id.During opening statements, defense counsel reminded the jury that they would be asked to
convict Appellant based on the testimony of a single witness—D.M.—and her testimony would
“not add up,” would “not make sense,” would “not be corroborated,” and there were “serious
discrepancies” between D.M.’s two statements to the police. Regarding the outcry to her mother,
the trial court did not allow defense counsel to tell the jury D.M. made the outcry because D.M.
was getting into trouble. 7 Instead, counsel told the jury D.M. and her mother “were having issues”
and “they had a very serious conversation about these issues.” Appellant’s defense, therefore,
rested on challenging D.M.’s credibility, which he did by cross-examining D.M. about her outcry
to her mother and her two statements to the police. 8
On direct examination, D.M. testified that Appellant “raped” her on more than one
occasion “by put[ting] his private part in” hers. When she made the general outcry to her mother,
they went to the police station the next day, and she remembered giving two statements about 30
days apart. 9 On cross-examination, defense counsel asked D.M. about discrepancies between her
trial testimony and the statements and discrepancies between the two statements. Despite being
7
Defense counsel asked the trial court if he could “say that [D.M.’s] mom confronted her and that’s why she said that
she had been raped.” The court replied, “No. Because then we start getting–I mean, you can still accomplish what you
need to accomplish by saying there were certain things going on. You’ll hear about it and you’re going to understand
the motivation why she did what she did. Obviously, in your words, but along those lines.”
8
Defense counsel also questioned other witnesses for the State about the discrepancies in D.M.’s statements.
9
Then-Officer Claudia Azar took the first statement from D.M. at the police station in August 2020. Detective
Lourdes Smith took D.M.’s second statement in September 2020. D.M. was fourteen years old at the time.
20
given leeway to ask D.M. about “certain things going on” with Aurora as the motivation for D.M.’s
outcry to her mother, defense counsel did not ask D.M. about any “issues” or any “very serious
conversation [with her mother] about these issues.”
Defense counsel asked Aurora about the outcry, “I’m asking you: If [D.M.] say [sic] that
you had got mad at her for talking about sex with a–another boy, that is not true or is that true?”
Aurora responded that she did not remember. During closing arguments, defense counsel again
reminded the jury that D.M.’s story “evolved.” Counsel also spent a significant portion of his
closing arguments walking the jury through the inconsistencies in D.M.’s statements to the police.
Our review of the record reveals that Appellant challenged D.M.’s credibility in a number
of ways. Therefore, based on the record as a whole, we have a fair assurance the erroneous
exclusion of evidence had, at best, only a slight influence on the jury. Accordingly, we overrule
Appellant’s second issue.
JAIL CALL
In his third issue, Appellant asserts the trial court erred when it admitted into evidence a
recording of a Spanish-language telephone call between him and his wife (Mercedes) while he was
incarcerated.
A. Background
During trial, the court heard defense counsel’s objections to the State’s offer of the
recording and translation on various grounds, including that the call did not satisfy the
requirements of Texas Code of Criminal Procedure 38.37 and the call was prejudicial. 10 The court
admitted the call and translation into evidence.
10
Appellant also objected that the call was not relevant and was hearsay within hearsay, violated his right of
confrontation as to the circumstances surrounding the call or the veracity of the allegations made in the conversation,
and the translation of the call differed from what was said on the call. Appellant does not argue these points on appeal.
21
The audio of the call, which is in Spanish, was played for the jury. The English translation
of the call reveals Mercedes told Appellant that her daughter, S.C., told her the following:
Well, [S.C.] told me that, she couldn’t stand it anymore, but she said, “He never did
anything to me, mom. He never touched me.” She said, “I know that he is going to
tell you that it’s a lie. I-I never told you. Not out of fear.” She said, “simply because
you weren’t going to believe me.” And of course I do believe her. I do believe my
daughter. That, she told me that-that you, ever, since she was young, she said, “I
was still with Alonso, mom.” She said, “and when he would come back drunk–he
never touched me. He never did anything to me.” She said[] “But every time that
he’d come back drunk,” . . . “he would masturbate in front of me.”
When Appellant denied S.C.’s allegation, Mercedes told him not to deny it because she had
“caught” him. Mercedes then told Appellant,
[S.C.] said, “and he’s going to tell you that it’s not true, that he was drunk.” She
said, “But he would always do that. He would masturbate in front of me when you
weren’t in the house because he was a little drunk.” She said, “But, he wasn’t
drunk.” . . . “Because he would just sense that you were going to go out or that you
were on your way home.” I said, “Why didn’t you ever tell me?” She said, “Because
. . . you weren’t going to believe me. It already happened–this is what happened
and I didn’t want to hurt you more.” And you see, how much it hurt me, sweetheart.
Wasn’t I enough woman for you?
Appellant responded,
Well/no–yes. Well/no–well/no–yes–yes–yes–yes. I don’t–don’t have anything to
say about that. But that about–[S.C.], yes, yes, I remember now, honey, about–
about that time. Yes. Yes–yes–yes. Because yes, I don’t know what more or less
happened, and okay. But yes, well, you are right. Uh huh . . . Yes, you are right
about that, honey.
Mercedes told Appellant, “the thing . . . about [D.], the thing about [L.], you can tell me
because they’re my nieces. But, about my daughter, honey, it hurt me.” Appellant replied,
Yes, well, well/no, that time, honey, I do–do remember. Yes, you are right, but I
don’t . . . know. I don’t know. Like I told you, I don’t know what . . . happened to
me. If I got frustrated or I don’t know. What can I say.
Regarding whether there were other incidents involving S.C., Mercedes told Appellant,
“[i]t wasn’t only that time, sweetheart, yes, there were several times. And it was ever since she . .
22
. was twelve years old.” Appellant responded, “No–no–no–no. What then? No–no. No, please no.
No–no–no–no.”
When Appellant said he would call her again, Mercedes told him not to call until he had
the courage to tell the truth, to which Appellant responded, “Well I told you that, it’s . . . only that
time” and “I just remember about that time . . . [n]othing else.”
On appeal, Appellant contends the trial court erred in admitting the call because (1) the
State failed to prove up the extraneous offense purportedly discussed in the recording under Code
of Criminal Procedure Article 38.37, (2) the State did not prove S.C. was younger than 17 years
old at the time of the alleged extraneous offense, (3) admitting the portions of the call that he
adopted was substantially more prejudicial than probative, and (4) he was harmed by the error.
B. Article 38.37
Texas Rule of Evidence 404(b) prohibits “[e]vidence of a crime, wrong, or other act . . . to
prove a person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Tex. R. Evid. 404(b)(1). However, notwithstanding Rule 404,
Article 38.37 provides that “evidence that the defendant has committed a separate offense
described by Subsection (a)(1) [offenses “against a child under 17 years of age”] or (2) [offenses
“against a person younger than 18 years of age”] may be admitted in the trial of an alleged offense
described by Subsection (a)(1) or (2) 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. Ann. art. 38.37 § 2(b); Romano v. State, 612 S.W.3d 151, 158
(Tex. App.— Houston [14th] 2020, pet. ref’d) (holding Article 38.37 “applies to certain types of
sex-based offenses” against children). Before such evidence may be introduced, the trial court
must conduct a hearing outside the jury’s presence to “determine that the evidence likely to be
23
admitted at trial will be adequate to support a finding by the jury that the defendant committed the
separate offense beyond a reasonable doubt.” Id. § 2-a. “Adequate under section 2-a means legally
sufficient.” Romano, 612 S.W.3d at 159. “If the statutory requirements of article 38.37 are met,
evidence that ordinarily would be inadmissible under rule 404(a)(1) becomes admissible.” Id. at
158.
On appeal, the parties disagree as to whether Appellant “adopted” S.C.’s allegations against
him. The State asserts that based on Appellant’s admission during the call to having committed
the extraneous act of masturbating in front of Mercedes’s daughter, the jury could find beyond a
reasonable doubt that he committed this act; therefore, Article 38.37, § 2-a is satisfied. Appellant
counters that he never admitted to committing any extraneous offense. Appellant’s argument on
appeal is slight at best; however, in the interest of justice we will construe his argument as
contending S.C.’s allegation was hearsay and therefore could not be used as evidence to satisfy
Article 38.37, § 2-a.
Hearsay is not admissible unless allowed by statute, the Rules of Evidence, or other rules
prescribed under statutory authority. Tex. R. Evid. 802. Hearsay is a statement that “(1) the
declarant does not make while testifying at the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in the statement.” Id. 801(d)(1-2). A statement is
not hearsay if the “statement is offered against an opposing party and . . . is one the party
manifested that it adopted or believed to be true[.]” Id. 801(e)(2)(B). “Statements made by others
in a defendant’s presence may be admissible as adoptive admissions if the defendant, . . . by his
actions and responses, showed agreement with the statements.” State v. Villegas, 506 S.W.3d 717,
745 (Tex. App.—El Paso 2016), pet. dism’d, State v. Villegas, 544 S.W.3d 375 (Tex. Crim. App.
2018) (per curiam) (citation omitted).
24
As the proponent of the evidence, the State had the burden of proving to the trial court, by
a preponderance of the evidence, that Appellant’s statements to Mercedes during the telephone
conversation qualified as an adoptive admission under Rule 801(e)(2)(B). Alvarado v. State, 912
S.W.2d 199, 215 (Tex. Crim. App. 1995) (en banc), overruled on other grounds by Warner v.
State, 245 S.W.3d 458 (Tex. Crim. App. 2008). We review a trial court’s ruling on the admission
of evidence under an abuse-of-discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370
(Tex. Crim. App. 2018). We uphold the trial court’s ruling unless it is outside the zone of
reasonable disagreement. Id.Here, Mercedes told Appellant that S.C. confided in her that “ever since she was young,”
“he would always do that. He would masturbate in front of me when you weren’t in the house
because he was a little drunk.” During their discussion about whether he masturbated in front of
his step-daughter, Appellant responded: “I do–do remember,” “Yes, you are right, but I don’t . . .
know,” “Like I told you, I don’t know what . . . happened to me,” “If I got frustrated or I don’t
know,” “Well I told you that, it’s . . . only that time,” and “I just remember about that time . . .
[n]othing else.” Regarding S.C.’s age at the time, Mercedes stated Appellant’s behavior had been
on-going “since [S.C.] was twelve years old.”
In an Article 38.37, § 2-a hearing, “the trial court is the fact finder and as such, is the sole
arbiter of the credibility of the witness and the weight given to his or her testimony.” Deggs v.
State, 646 S.W.3d 916, 924 (Tex. App.—Waco 2022, pet. ref’d). The trial court can resolve
conflicts in the testimony, weigh the evidence, and draw reasonable inferences therefrom. Clayton
v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Here, Appellant’s, at times, stuttering
responses did not render his testimony inadequate under Article 38.37. The trial court could have
reasonably inferred from Appellant’s responses that he adopted both the allegation of an
25
extraneous offense and that the offense occurred when S.C. was under the age of 17. Based on
these implied findings, the trial court apparently “determine[d] that the evidence likely to be
admitted at trial w[ould] be adequate to support a finding by the jury that [Appellant] committed
the separate offense beyond a reasonable doubt.” See Tex. Code. Crim. Proc. Ann. art. 38.37, § 2-
a(1). On this record, we conclude the trial court did not abuse its discretion by doing so.
C. Rule 403 balancing test
Appellant concedes he may have admitted to something when he said to Mercedes, “it’s . .
. only that time” and “I just remember about that time . . . [n]othing else.” He asserts the probative
value of the jury hearing him make an “ambiguous acknowledgement” is substantially outweighed
by the confusing nature of the conversation and the prejudicial effect of hearing Mercedes’s
“inflammatory” statement about S.C.’s allegations.
When evidence of a defendant’s extraneous act is determined to be relevant and admissible
under Article 38.37, § 2(b), the evidence remains subject to exclusion under Rule of Evidence 403.
Wishert v. State, 654 S.W.3d 317, 331 (Tex. App.—Eastland 2022, pet. ref’d); see also Deggs,
646 S.W.3d at 925 (holding admission of evidence pursuant to Article 38.37, § 2(b) is limited by
Rule 403’s balancing test). Rule 403 allows a trial court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.” Tex. R. Evid. 403.
A trial court undertaking a Rule 403 analysis must balance “(1) the inherent probative force
of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3)
any tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to
26
be given undue weight by a jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate
amount of time or merely repeat evidence already admitted.” Gigliobianco v. State, 210 S.W.3d
637, 641–42 (Tex. Crim. App. 2006). On appeal, Appellant focuses his argument on the first three
factors.
(1) Probative value
“[P]robative value means more than simply relevance.” Id. at 641. “Probative value”
“refers to the inherent probative force of an item of evidence—that is, how strongly it serves to
make more or less probable the existence of a fact of consequence to the litigation—coupled with
the proponent’s need for that item of evidence.” Id. If the proponent “has other compelling or
undisputed evidence” to prove the fact, then the item’s probative value “will weigh far less than it
otherwise might in the probative-versus-prejudicial balance.” Id.“[E]vidence of a separate sexual offense against a child admitted under Article 38.37,
Section 2(b) is probative of a defendant’s character or propensity to commit sexual assaults on
children.” Deggs, 646 S.W.3d at 925; Alvarez v. State, 491 S.W.3d 362, 371 (Tex. App.—Houston
[1st Dist.] 2016, pet. ref’d) (“Because the evidence of prior sexual abuse of children was especially
probative of Appellant’s propensity to sexually assault children, the Rule 403 balancing test
normally will not favor the exclusion of evidence of the defendant’s prior sexual assaults of
children.”). We conclude the evidence relating to the extraneous offense offered by the State was
probative of Appellant’s character or propensity to commit sexual offenses with children. As a
result, we conclude this factor weighs strongly in favor of admission.
27
(2) State’s need for the evidence
“Sexual assault cases are frequently he said, she said trials in which the jury must reach a
unanimous verdict based solely upon two diametrically different versions of an event, unaided by
any physical, scientific, or other corroborative evidence.” Hammer v. State, 296 S.W.3d 555,
561– 62 (Tex. Crim. App. 2009). The courts therefore should use Rule 403 “sparingly to exclude
relevant, otherwise admissible evidence that might bear upon the credibility of either the defendant
or complainant in such he said, she said cases.” Id. at 562.
Appellant contends the State’s need for the telephone call was low because the State also
called two other extraneous-offense witnesses. One witness, A.D., testified to an occasion when
Appellant grabbed her “trying to put his private area like close to where my rear area was.” She
could not remember her age at the time, but she knew she was younger than 17 years of age. She
said there were other occasions when Appellant was “inappropriate” with her, but she could not
recall the details. The second witness, L.M., testified that when she was six or seven years old,
Appellant “came behind me [while she was sitting in a van coloring], and . . . he put his hands on
the seat of the van” and “thrust [“his hard penis”] into my butt as I was bent over coloring. And he
would–just kept doing it.” She also described several incidents when Appellant masturbated in
front of her.
Here, D.M.’s outcry came several years after the assault and there was no eyewitness
testimony or physical evidence of abuse, such as DNA or documented injuries to D.M. The State’s
case against Appellant rested on D.M.’s testimony about the assault and statements she made to
others about it. It was, in essence, Appellant’s word against hers. Although A.D. and L.M. testified
about alleged extraneous offenses involving Appellant, the extraneous offense about which S.C.
told Mercedes was the only offense adopted by Appellant. Therefore, we conclude the State’s need
28
for this evidence to support D.M.’s credibility was not insignificant. Accordingly, this factor does
not weigh against admission. See Dies v. State, 649 S.W.3d 273, 286 (Tex. App.—Dallas 2022,
pet. ref’d).
(3) Improper basis
The phrase, “unfair prejudice,” “refers to a tendency to suggest a decision on an improper
basis, commonly, though not necessarily, an emotional one.” Gigliobianco, 210 S.W.3d at 641.
“Evidence might be unfairly prejudicial if, for example, it arouses the jury’s hostility or sympathy
for one side without regard to the logical probative force of the evidence.” Id.“[E]vidence of previous child sexual abuse is inherently inflammatory by nature and,
hence, can be prejudicial.” Dies, 649 S.W.3d at 286; see also Pawlak v. State, 420 S.W.3d 807,
811 (Tex. Crim. App. 2013) (“When we examine the potential to impress the jury in some irrational
but unforgettable way, we cannot ignore our statements that sexually related bad acts and
misconduct involving children are inherently inflammatory.”). “However, the plain language of
Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence is
merely prejudicial.” Pawlak, 420 S.W.3d at 811. “Indeed, all evidence against a defendant is, by
its very nature, designed to be prejudicial.” Id. The question in a Rule 403 analysis is whether the
evidence was unfairly prejudicial. See Caston v. State, 549 S.W.3d 601, 612-13 (Tex. App.—
Houston [1st Dist.] 2017, no pet.) (acknowledging “evidence that appellant sexually abused
another child in addition to the complainant in the charged offense was ‘clearly prejudicial’ to his
case,” but he did not establish it “was unfairly prejudicial”).
Here, the potential for unfair prejudice was relatively diminished by the fact that S.C.’s
allegations were not more serious than D.M.’s allegations. Dies, 649 S.W.3d at 286 (“Yet this
potential was diminished in this case by the fact that AD’s allegations were no more serious than
29
complainant’s. Indeed, although appellant initially abused both girls in similar fashion, his abuse
of complainant grew worse over time, and she recounted more instances of abuse than AD, and in
greater detail.”). Further, any tendency to draw impermissible inferences of guilt “can be
minimized through a limiting instruction.” Beam v. State, 447 S.W.3d 401, 405 (Tex. App.—
Houston [14th Dist.] 2014, no pet.). We generally presume a jury will follow the trial court’s
instructions in the manner presented, which mitigates the potential for prejudice. See Garcia v.
State, 614 S.W.3d 749, 757 (Tex. Crim. App. 2019). In this case, the trial court instructed the jury
as follows:
[I]f there is any evidence before you concerning alleged offenses against a child
under seventeen years of age, other than the complainant alleged in the indictment,
such offenses or offenses, if any, may only be considered if you believe beyond a
reasonable doubt that the defendant committed such other offense or offenses, if
any, and then you may consider said evidence 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.
We conclude the extraneous-offense evidence did not create a significant potential to
impress the jury in an irrational but indelible way. Therefore, this factor does not weigh against
admission.
(4) Conclusion
We conclude that after balancing the Rule 403 factors, the trial court could have reasonably
concluded the probative value of the evidence in question was not substantially outweighed by the
danger of unfair prejudice and the other Rule 403 factors. Accordingly, the trial court did not abuse
its discretion in admitting the extraneous-offense evidence contained in the telephone call. Because
we conclude that the trial court did not err by admitting the evidence, we need not conduct a harm
analysis. We overrule Appellant’s third issue.
30
JURY SHUFFLE
In his fourth issue, Appellant asserts the trial court erred when it denied his request for a
jury shuffle, and he was harmed by the error.
A. Background
Before the venire panel entered the courtroom, defense counsel requested a jury shuffle.
The trial court denied the request on the following basis:
[The request was made] before we had seen anybody, you know, or had any reason
to look at the jury and say, “This is why.” There is a reason why we set a deadline
for when a shuffle can be requested, and we give counsel plenty of time to review
the jury sheets, review the information regarding a juror so that we can then prepare
and be more efficient in our process today and prepare, for example, our seating
chart. So for those reasons of efficiency, and I find there is no bias–or any prejudice,
I should say, against any of the parties by following this procedure, which has
always been the Court’s procedure, your request is denied.
B. Applicable law
Texas Code of Criminal Procedure Article 35.11 provides as follows:
The trial judge, on the demand of the defendant or his attorney, or of the State’s
counsel, shall cause a sufficient number of jurors from which a jury may be selected
to try the case to be randomly selected from the members of the general panel drawn
or assigned as jurors in the case. The clerk shall randomly select the jurors by a
computer or other process of random selection and shall write or print the names,
in the order selected, on the jury list from which the jury is to be selected to try the
case. The clerk shall deliver a copy of the list to the State’s counsel and to the
defendant or his attorney.
Tex. Code Crim. Proc. Ann. art. 35.11. “Article 35.11 provides an accused with an absolute right,
after viewing the seating of the members of the jury panel in the courtroom, to have the names of
the members of the jury panel shuffled and the panel reseated in a new and random order.” Ford
v. State, 73 S.W.3d 923, 931 (Tex. Crim. App. 2002) (Holcomb, J., dissenting). A request for a
jury shuffle is timely if made prior to commencement of voir dire. Ex parte Daigle, 848 S.W.2d
691, 692 (Tex. Crim. App. 1993) (en banc).
31
C. Analysis
It is undisputed that Appellant requested a shuffle of the venire panel immediately prior to
voir dire. However, the State argues this request was premature because neither the trial court nor
the parties had had the opportunity to review the jury sheets or view the venire panel seated in the
courtroom in its proper order. The State also contends Appellant’s request occurred before any
justification for such a request could have arisen. While we agree that Appellant’s request for a
jury shuffle came before “viewing the seating of the members of the jury panel in the courtroom,”
we will assume without deciding that the trial court erred by refusing Appellant’s request for a
jury shuffle. Therefore, we next assess whether he was harmed by the error.
Because the right to a jury shuffle is statutory rather than constitutional, we will reverse a
trial court’s improper denial of a motion to shuffle the jury only if we conclude that Appellant was
harmed by the error. Ford, 73 S.W.3d at 924–25. Harm is caused by nonconstitutional error if one
of the defendant’s substantial rights was affected. Id. Tex. R. App. P. 44.2(b) (“Any other error,
defect, irregularity, or variance that does not affect substantial rights must be disregarded.”).
Therefore, the relevant inquiry in determining harm is “whether the jury shuffle statute’s purpose
was thwarted by the error.” Ford, 73 S.W.3d at 926. The purpose of the jury shuffle statute is to
“ensure that the members of the venire [were] listed in random order.” Thus, harm will be shown
by an indication that the venire members were not listed in a random order. Id. Panels must be
listed randomly according to the applicable law and rules. Id. (“Randomness is ensured by statutes
directing the drawing of names, by the certification of the jury list, and by provisions for electronic
or mechanical methods of selection.”) Id.Because the law requires that venire panels be assembled in random order, a trial judge’s
failure to order a shuffle does not, by itself, indicate a non-random listing of the venire members.
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In this case, nothing in the record indicates that the statutes or rules by which the initial panel
would have been drawn were disregarded. Appellant requested the shuffle before the venire panel
was seated. On appeal, he does not explain his reason for the request, and he provides no strategic
reason for requesting the shuffle. See Davis v. State, 782 S.W.2d 211, 214 (Tex. Crim. App. 1989)
(en banc) (“In interpreting Article 35.11, we have determined that compliance with that statute is
had when counsel for either the State or the defendant is allowed the opportunity to view the venire
seated in the courtroom in proper sequence and is thereafter allowed an opportunity to exercise his
or her option to have the names shuffled.”); Ford, 73 S.W.3d at 931 (Holcomb, J., dissenting)
(“That is to say, by way of Article 35.11, the Legislature has provided an accused with a strategic
tool with which he can reconfigure the jury panel in the hope of either (1) placing visually preferred
venire members earlier in the seating arrangement so as to increase the probability they will be
selected or (2) placing visually non-preferred venire members later in the seating arrangement so
as to decrease the probability they will be selected.”).
Because the panel had not yet been assembled, we must assume the initial venire members
would have been assembled in a random order. And there is no indication “that the process of
assembling a jury panel was subverted in some fashion to achieve a nonrandom listing of the
venire.” Id. at 926. Therefore, we conclude the trial court’s refusal to shuffle the panel was
harmless. Accordingly, we overrule Appellant’s fourth issue.
CUMULATIVE HARM
In his fifth and final issue on appeal, Appellant asserts the cumulative harm of the trial
court’s errors affected his substantial rights.
A number of errors may be found harmful in their cumulative effect. Chamberlain v. State,
998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (en banc); see also Martin v. State, 151 S.W.3d 236,
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242 (Tex. App.—Texarkana 2004, pet. ref’d) (appellate court should consider cumulative effect
of multiple errors). The mere existence of multiple errors, however, does not warrant reversal
unless they operated in concert to undermine the fundamental fairness of the proceedings. Estrada
v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010); Linney v. State, 413 S.W.3d 766, 767
(Tex. Crim. App. 2013) (Cochran, J., concurring in refusal of pet.) (“A string of harmless errors
does not arithmetically create reversible, cumulative error. Instead, we look for multiple errors that
synergistically achieve the critical mass necessary to cast a shadow upon the integrity of the
verdict.”) (internal quotations and citations omitted).
As stated above, nonconstitutional error that does not affect an accused’s substantial rights
is harmless and must be disregarded. Tex. R. App. P. 44.2(b). In making our assessment of whether
Appellant’s substantial rights were affected, we consider everything in the record, the nature of
the evidence supporting the verdict, the character of the alleged error, and how it relates to other
evidence in the record. Motilla, 78 S.W.3d at 355. We also may consider the jury instructions, the
State’s theory and any defensive theories, closing arguments, and voir dire, if applicable. Id. at
355–56.
Appellant asserts the trial court’s errors allowed the State to bolster D.M.’s “ever-evolving”
account of abuse by permitting the two detectives to testify about D.M.’s outcries and deprived
him of his right to cross-examine D.M. about the critical timing and motive for her outcry. 11 Our
harm analysis for these errors, which included a review of the record, is explained above. Based
on our review, we concluded these errors did not affect Appellant’s substantial rights. Appellant’s
11
Appellant also contends the trial court’s errors “injected wholly unproven allegations of sexual misconduct
involving an extraneous complainant.” We take that to refer to the admission into evidence of the jail call, which we
concluded was not in error.
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cumulative error argument does not persuade us that the combined errors operated in concert to
undermine the fundamental fairness of his trial. Accordingly, we overrule Appellant’s fifth issue.
See Martin, 151 S.W.3d at 245–46 (“In light of the record as a whole, we are reasonably assured
that the errors, considered together, did not substantially influence the jury’s verdict.”).
CONCLUSION
We affirm the trial court’s judgment.
LISA SOTO, Justice
April 12, 2024
Before Alley, C.J., Palafox and Soto, JJ.
(Do Not Publish)
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