Jose Lopez Jr. v. the State of Texas

NUMBER 13-22-00158-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSE LOPEZ JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 272nd District Court
of Brazos County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Justice Longoria
Appellant Jose Lopez, was found guilty by a jury for the offense of aggravated
assault with a deadly weapon, a first degree felony. See TEX. PENAL CODE ANN.
§ 22.02(a)(2), (b)(1). The jury sentenced Lopez to twelve years’ imprisonment in the
Correctional Institutions Division of the Texas Department of Criminal Justice. By two
issues, Lopez claims the trial court abused its discretion when it limited his cross-
examination of a witness during the punishment phase of his trial. We affirm. 1
I. FACTUAL BACKGROUND
On the evening of June 23, 2017, Lopez brutally assaulted his wife, Monica
Lopez, 2 at their home in Bryan, Texas. Monica’s son and Lopez’s stepson, John Pineda,
also lived in the home and was getting ready to go to sleep when he heard Monica
frantically yelling “Ow, ow!” Pineda immediately left his room and saw Monica crouched
down in a fetal position in a corner of the living room. Pineda observed Lopez, his
stepfather, strike Monica “all over” with closed fists while Monica used her hands to
protect her face. Pineda grabbed Lopez to get him off of Monica, but Lopez pushed
Pineda away and continued punching Monica, who was on the floor. Pineda also
witnessed Lopez stomp Monica’s head with his feet while she remained defenseless on
the ground. Pineda grabbed Lopez a second time, and Lopez finally stopped his assault
and left the home. Pineda called for an ambulance.
During the 911 call, Monica told the operator that Lopez had stomped on her face
and hands. When asked by the 911 operator “Why did this happen?” and “How did this
start?” Monica replied “[b]ecause I told him I was leaving him.” Due to the severity of her
injuries, first responders could not treat Monica at the scene and transported her to the
hospital. During her examination at the hospital, a CAT scan revealed that Monica
previously had surgery to treat a brain aneurysm. As a result of Lopez’s assault, Monica
suffered a broken nose, a contusion to the eye that was nearly swollen shut, and a
1 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2 We refer to the victim by her first name to avoid confusion.
2
contusion on her left hand.
II. THE TRIAL
Lopez was indicted for aggravated assault with a deadly weapon, a first-degree
felony (Count One), and assault involving family violence with a previous conviction of
assault involving family violence, a third-degree felony (Count Two). See TEX. PENAL
CODE §§ 22.01(a)(1), (b)(2)(A), 22.02(a)(2), (b)(1).
A. Guilty Phase
On March 8, 2022, prior to jury selection, the State informed the trial court that it
intended to abandon the word “serious” in Count One of the indictment, which alleged in
relevant-part that Lopez “. . .intentionally, knowingly, and recklessly cause[d] serious
bodily injury to Monica Lopez” (emphasis added). The State informed the trial court that
it was retaining the word “serious” as it appeared in Count One’s language regarding the
definition of a deadly weapon. The State also informed the trial court that it was going to
proceed only on Count One, and abandon Count Two. Lopez affirmatively waived any
objections, and the trial court granted the State’s request. As a result, Count One stated
in relevant-part that Lopez “. . .intentionally, knowingly, and recklessly cause[d] bodily
injury to Monica Lopez,” the word “serious” having been removed. Thereafter, the jury
was sworn in, Lopez was arraigned by the trial court, and he pleaded “not guilty.”
After the State presented its first witness, Lopez informed the trial court of his intent
to change his plea on Count One from “not guilty” to “guilty.” After several plea documents
were executed by the parties and the trial court, Lopez freely and voluntarily pleaded
“guilty” to Count One of the indictment in the presence of the jury, which was accepted
3
by the trial court. The trial court explained to the jury that it was going to instruct them in
the jury charge to find Lopez guilty based on his guilty plea and then to determine an
appropriate punishment after hearing all the evidence.
B. Punishment Phase
At the punishment phase, Pineda testified as to the circumstances of the June 23,
2017 assault. According to Pineda, Monica and Lopez had been in a relationship for years
prior to getting married and would argue about money and infidelity. On cross-
examination, Pineda admitted that he knew of Alejandro “Alex” Carillo, who had an
extramarital relationship with Monica. Pineda testified that Carillo was not at Monica and
Lopez’s home during the day or night of the June 23, 2017 assault.
Monica testified that she had been married to Lopez since 2013 and was still
married to him. Monica stated she had aneurysm surgery in 2012 or 2013, and that as a
result, her short-term and long-term memory deteriorated. Monica testified that on June
23, 2017, prior to the assault, she and Lopez had been arguing. Monica could not
remember the reason for the argument, but stated, “I don’t know if it was about cheating
because I cheated. We’ve cheated,” and testified that she thought that the cheating was
the central topic of the argument. Monica could not remember the specifics of the assault,
but testified that “it happened so fast” and “it went from verbally arguing to—to abuse, I
guess.”
During Monica’s testimony, the State and Lopez had a bench conference with the
trial court regarding the State’s desire to elicit testimony of a prior bad act committed by
Lopez—specifically, a previous assault in 2012 where Lopez punched Monica’s eye.
4
Lopez objected to relevance, and the trial court overruled the objection. Monica testified
that in 2012, after leaving her daughter’s birthday party, she went to the hospital because
Lopez punched her eye. Monica testified that she felt this incident was her fault because
she cheated on Lopez. Monica also testified that she learned she had an aneurysm in
2012 after Lopez’s 2012 assault and that Lopez knew about the aneurysm shortly after
she learned of it.
On cross-examination, Monica admitted to having an extramarital affair with
Carillo, whom she described as her “ex,” over a period of time. In addition, Lopez asked
Monica: “[Y]ou remember [Carillo] and [Lopez] being in the trailer together at the same
time; is that right? You don’t remember when [Carillo] came with a knife—” whereupon
the State objected and requested a bench conference. After hearing arguments, the trial
court excused the jury in order to continue addressing the matter.
After the jury was excused, Lopez explained that he intended to elicit testimony of
prior bad acts committed by Carillo through his cross-examination of Monica. With the
jury still not present, Lopez first questioned Monica about an incident when Carillo
allegedly cut Lopez with a knife:
[Counsel for Lopez]: All right, [Monica], there was a time between
2012 and 2017 when [Carillo] and [Lopez] were
in your trailer at the same time; is that right?
[Monica]: Yes, sir.
[Counsel for Lopez]: And there was a time that [Carillo] threatened
[Lopez] with a knife inside your trailer; is that
correct?
[Monica]: Yes, sir.
5
[Counsel for Lopez]: Now, [Carillo] never cut [Lopez] with that knife,
did he?
[Monica]: I think he did.
[Counsel for Lopez]: [Carillo] did cut [Lopez]?
[Monica]: Yes.
[Counsel for Lopez]: And, obviously, that caused some of the bad
times between you and [Lopez]; is that right?
[Monica]: Yes, the cheating.
[Counsel for Lopez]: And y’all have fought about the cheating, you
said both him cheating and you cheating, off and
on for years; is that right?
[Monica]: Yes, sir.
Lopez next questioned Monica about an incident where Carillo assaulted Monica:
[Counsel for Lopez]: [Carillo’s] not accused of assaulting you, is he?
[Monica]: Yes.
[Counsel for Lopez]: He is accused of assaulting you?
[Monica]: Yes.
....
[Counsel for Lopez]: I have to ask now a little bit about the incident
between you and [Carillo] where he’s charged
with aggravated assault. Do you remember that
incident?
[Monica]: Yes. That recently happened.
[Counsel for Lopez]: Okay. How long ago? This year?
[Monica]: No. Um, it was ‘20. 2020. 2021.
[Counsel for Lopez]: And can you describe for the judge what
happened, how he assaulted you?
6
[Monica]: Um, I just remember us arguing, and I think he
just came behind me, I think, and he hit me.
[Counsel for Lopez]: He came behind you and he hit you?
[Monica]: Yeah, because I was running away.
[Counsel for Lopez]: And do you know what he hit you with?
[Monica]: His fist.
[Counsel for Lopez]: And like [Lopez], [Carillo] was charged with
aggravated assault for that, correct?
[Monica]: Yes, sir.
Lopez also questioned Monica about an incident when Lopez was allegedly assaulted
by Carillo or his friends or family:
[Counsel for Lopez]: Now, you are aware as well that shortly after this
happened in 2017 where [Lopez] has been—
has pled guilty to assaulting you—you are
aware that [Carillo] or some of his friends or
some of his family beat up [Lopez], aren’t you?
[Monica]: Yes, I have heard of it.
[Counsel for Lopez]: And did you see [Lopez] after he was beat up?
[Monica]: Um.
[Counsel for Lopez]: Better question. Did you see his injuries from
after he was beat up by those people?
[Monica]: Um, I did see them.
....
[Counsel for Lopez]: All right, [Monica], I’m going to show you three
pictures marked as D-1, D-2, and D-3 and ask
you: Do those look like the injuries that you saw
on [Lopez] after [Carillo] and his people beat him
7
up?
[Monica]: Yes.
[Counsel for Lopez]: Defense Exhibit 2. Does that look like some
more of the injuries?
[Monica]: Yes.
[Counsel for Lopez]: And appears there’s a pretty good scalp cut right
there too, doesn’t it?
[Monica]: Yes.
....
[Counsel for Lopez]: Likewise, Defense Exhibit 3, that’s a fair and
accurate depiction of the injuries that he had
that you saw, correct?
[Monica]: Yes.
....
[Counsel for Lopez]: [Monica], did [Carillo] tell you he did that?
....
[Counsel for Lopez]: You can answer that question.
[Monica]: Did [Carillo] tell me what he said?
[Counsel for Lopez]: Yes.
[Monica]: No.
[Counsel for Lopez]: Did you see [Lopez] get beat up?
[Monica]: Didn’t see him.
[Counsel for Lopez]: When [Lopez] told you about that fight and you
saw those injuries, was he excited or what was
his state of mind? What did he look like? Let me
ask you this way. Was he nervous?
8
[The Court]: I would like to also know when she saw him
after.
[Counsel for Lopez]: . . .[D]o you remember when he was injured?
[Monica]: I don’t remember.
[Counsel for Lopez]: Do you remember if it happened before or after
the crime that he’s pled guilty to here today?
[Monica]: It was after.
[Counsel for Lopez]: And, again, was [Lopez] in an excited or
agitated state?
[Monica]: Excited? No.
[Counsel for Lopez]: Was he upset because he had just gotten his
butt kicked?
[Monica]: Oh, yes.
[Counsel for Lopez]: And do you know—well, those look like pretty
fresh wounds, don’t they?
[Monica]: Yes.
[Counsel for Lopez]: He would have to have been injured shortly
before you saw those injuries; is that right?
[Monica]: Yes, sir.
[Counsel for Lopez]: That was fresh blood on there, wasn’t it?
[Monica]: Yes.
[Counsel for Lopez]: It wasn’t dried blood, was it?
[Monica]: No.
Lopez requested to admit the photos in addition to Monica’s testimony related to this
incident. Lopez argued that the evidence and testimony related to this incident went to
9
the “ongoing nature of the relationship—not between [Monica] and [Carillo]—but between
[Lopez] and [Monica].” The trial court disagreed, stating that “this [evidence and
testimony] doesn’t go to that,” ruled that it was not relevant to punishment, and denied its
admission.
Lopez next requested to admit the testimony regarding the knife incident, arguing
that it went towards the nature of the relationship between Lopez and Monica.
Additionally, Lopez argued that the testimony was a mitigating factor as to the charged
offense and the 2012 assault where he punched Monica in the eye after her daughter’s
birthday party. The State argued that the testimony involved a third party and was not
permitted by Article 38.371 of the Code of Criminal Procedure. See TEX. CODE CRIM.
PROC. ANN. art. 38.371 (stating that in a trial for an offense involving dating or family
violence, each party may offer “testimony or evidence regarding the nature of the
relationship between the actor and the alleged victim,” but that “[t]his article does not
permit the presentation of character evidence that would otherwise be inadmissible under
the Texas Rules of Evidence or other applicable law”). Lopez confirmed to the trial court
his request for admission was being made pursuant to Article 38.371(b). See id.
§ 38.371(b). The trial court sustained the State’s objections, ruling that the testimony was
not relevant to punishment nor was admissible under Article 38.371. The trial court
allowed Lopez to make a final bill of exception:
[The Court]: I’ll let you make a bill, whatever you want to, but
I’m going to overrule—I’ll sustain [the State’s]
objection to the line of questioning about
[Carillo] and a knife and his family beating up
[Lopez] in this case because I don’t think it’s
relevant. Now, if there’s charges pending, you
10
know, it’s obviously relevant if there’s an
ag[gravated] assault out there with [Lopez] as
the victim or if [Monica] has some other charges
I don’t know about or other cases pending. But
in this case I’m not going to let it in as far as this
one is concerned.
[Counsel for Lopez]: My effort here, Judge—and this is just for
purposes of the record.
[The Court]: Sure.
[Counsel for Lopez]: I understand how the Court is going to rule on
this. My effort on this, it all goes to the nature of
the adultery and how the problems in the
relationship evolved from 2012 through 2017
shortly before this offense. I did not develop that
with her here, okay? But my intent would be to
further develop that he was stabbed in the chin,
that the knife was broken off in his mouth, okay.
And that incident, obviously, would have impact
on the relationship between the victim and the
defendant and serves as mitigating evidence as
to motive about why he did it. I get to try. What’s
good for the goose is good for the gander here,
Judge, in that motive obviously is not relevant at
all there at the guilty-not guilty phase. But
motive can be relevant in the punishment
phase. And the State tries to do that all the time.
It’s not often that the defense has an opportunity
to develop that and use that as a . . .mitigating
factor rather than an aggravated factor.
[The Court]: Are you saying he did 2017’s acts that he
ple[a]d[ed] to because of what? Because of
2012?
[Counsel for Lopez]: No.
[The Court]: Because this happened after 2017. This
wouldn’t be relevant.
[Counsel for Lopez]: I understand that, Judge. And the Court’s ruled
on that.
11
[The Court]: And when I say this, what I mean is D-1, D-2,
and D-3, the photographs of the injuries.
[Counsel for Lopez]: D-1, D-2, D-3 have to do with an incident where
he was jumped by people related to [Carillo]. I
understand the Court’s ruling on this. What
would be further developed from evidence from
her is that this knife incident happened in late
2016, early 2017 before the incident where he
pled guilty.
[The Court]: This was June of [2017]?
[Counsel for Lopez]: June [2017], yes, sir. And so there was violence
directed toward [Lopez] due to—
[The Court]: But by somebody else?
[Counsel for Lopez]: By someone else.
[The Court]: Not by her.
[Counsel for Lopez]: Correct. I’m not saying—
[The Court]: That’s why I’m having a hard time.
[Counsel for Lopez]: Where I’m going with that, Judge, is that it goes
to—obviously, that goes to the nature of the
relationship between the parties and how there
had been ups and downs, as everyone has
testified to right here. And this down could have
contributed to the offense that he pled guilty to,
ultimately, to the offense he pled guilty to.
[The Court]: Okay, well, I will take that as your proffer for it.
And so I’m still going to sustain the State's
objection to that under that line of questioning
as well. And we will not go into that in front of
the jury. But if there’s anything else you need to
develop, you are an officer of the court, you can
state it, have her back on the stand, but I’m
going to still sustain the objection.
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[Counsel for Lopez]: Judge, what I described right there as to nature
of this aggravated assault in late 2016, 2017 by
[Carillo] against the defendant—
[The Court]: Right.
[Counsel for Lopez]: —that’s the proffer that I’m making. And I can
develop that further with her, if the Court needs
to, but I believe—
[The Court]: I think that sets it out clearly. You gave some
details about a knife in his mouth and chin. So I
am still going to sustain the objection. Not going
into it in this case. Maybe in for a case another
day, but not this one.
Lopez neither requested nor obtained a ruling from the trial court regarding the admission
of Monica’s testimony related to Carillo’s assault of Monica in 2020 or 2021.
Lopez was sentenced as set forth above and this appeal followed.
III. DISCUSSION
By two points of error, Lopez argues that the trial court erred (1) when it limited his
cross-examination of Monica concerning violent acts committed against Lopez by Carillo
and/or his family and friends, and (2) when it limited his cross-examination of Monica
concerning Carillo’s assault against Monica. In his brief, Lopez jointly discusses these
points of error and raises three sub-issues for both, which we reorganize and construe as
two sub-issues. We address each point of error individually.
A. Violent Acts Committed Against Lopez
1. Confrontation Clause Violations
Lopez first contends that the trial court violated his Sixth Amendment right to
confrontation when it limited his cross-examination of Monica regarding violent acts
13
committed against Lopez by Carillo and/or his family or his friends. However, the record
demonstrates that Lopez did not object on Confrontation Clause grounds.
i. Applicable Law
The Confrontation Clause of the Sixth Amendment provides a right in both federal
and state prosecutions to confront and cross-examine adverse witnesses. See U.S.
CONST. amends. VI, XIV; Pointer v. Texas, 380 U.S. 400, 406 (1965); Woodall v. State,
336 S.W.3d 634, 641 (Tex. Crim. App. 2011).
To preserve error for appellate review, a party is required to make a timely
objection or make a request or motion to apprise the trial court what the party seeks.
Dollins v. State, 460 S.W.3d 696, 698 (Tex. App.—Texarkana 2015, no pet.) (citing TEX.
R. APP. P. 33.1(a)). Doing so gives the trial court an opportunity to remedy any purported
error. Id. To “preserve error regarding improperly excluded evidence, a party must timely
object, obtain a ruling from the trial court . . . and prove the substance of the excluded
evidence via an offer of proof.” Id. at 698–99 (first citing TEX. R. APP. P. 33.1(a); then citing
TEX. R. EVID. 103(a); and then citing Roberts v. State, 220 S.W.3d 521, 532 (Tex. Crim.
App. 2007)). Confrontation Clause complaints are subject to these same preservation
requirements. In re E.H., 512 S.W.3d 580, 586 (Tex. App.—El Paso 2017, no pet.) (citing
Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (concluding that the
appellant failed to preserve his Confrontation Clause complaint because he did not argue
to the trial court that the Confrontation Clause demanded admission of the proffered
evidence)). Thus, a Confrontation Clause objection must be made at trial or it is waived
14
on appeal. In re E.H., 512 S.W.3d at 586.
ii. Analysis
Here, when the trial court sustained the State’s objection to Lopez’s cross-
examination of Monica regarding the violent acts allegedly committed by Carillo, or his
associates, Lopez did not object to the ruling on the basis that the trial court violated his
Confrontation Clause rights. Accordingly, Lopez failed to preserve his Confrontation
Clause complaint, and we overrule this sub-issue. See Reyna, 168 S.W.3d at 179(explaining that because the appellant “did not articulate” that the Confrontation Clause
demanded admission of the evidence, the trial court did not have an opportunity to rule
on that rationale and that as the losing party, the appellant “must ‘suffer on appeal the
consequences of his insufficiently specific offer’”); In re E.H., 512 S.W.3d at 586(determining that the appellant had not preserved his Confrontation Clause complaint on
appeal because the appellant did not object on Confrontation Clause grounds when
seeking admission of certain evidence); Dollins, 460 S.W.3d at 698–99 (same).
2. Admissibility Under Article 37.07
Lopez next contends that the proffered evidence regarding the violent acts
committed against Lopez by Carillo and/or his friends or family was admissible under
Article 37.07 of the Texas Code of Criminal Procedure and that reliance on Article 38.371
was not necessary. 3
i. Standard of Review and Applicable Law
We review a trial court’s decision to admit evidence under an abuse of discretion
3Lopez does not argue on appeal that the proffered evidence was admissible under Article 38.371.
See TEX. CODE CRIM. PROC. ANN. art. 38.371.
15
standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial court
abuses its discretion only when its decision “was so clearly wrong as to lie outside that
zone within which reasonable persons might disagree.” Zuliani v. State, 97 S.W.3d 589,
595 (Tex. Crim. App. 2003). If the trial court’s decision is within the zone of reasonable
disagreement, it has not abused its discretion, and we defer to that decision. See Powell
v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will uphold the court’s ruling if
it is reasonably supported by the record and is correct under any theory of law applicable
to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002); State v. Ross,
32 S.W.3d 853, 856 (Tex. Crim. App. 2000).
The punishment phase of the trial is directed to the defendant’s prior criminal
record, his reputation and character, and evidence tending to mitigate punishment.
Thomas v. State, 750 S.W.2d 234, 235 (Tex. App.—Dallas 1986, no pet.); see also
Guajardo v. State, No. 13-18-00246-CR, 2021 WL 1047057, at *11 (Tex. App.—Corpus
Christi–Edinburg, Mar. 18, 2021, no pet.) (mem. op., not designated for publication).
Article 37.07, § 3(a) provides in relevant part:
Regardless of the plea and whether the punishment be assessed by the
judge or the jury, evidence may be offered by the state and the defendant
as to any matter the court deems relevant to sentencing, including but not
limited to the prior criminal record of the defendant, his general reputation,
his character, an opinion regarding his character, the circumstances of the
offense for which he is being tried, and, notwithstanding Rules 404 and 405,
Texas Rules of Evidence, any other evidence of an extraneous crime or bad
act that is shown beyond a reasonable doubt by evidence to have been
committed by the defendant or for which he could be held criminally
responsible, regardless of whether he has previously been charged with or
finally convicted of the crime or act.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1). Trial courts possess wide latitude in
16
determining the admissibility of evidence presented at the punishment phase of trial. See
Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999).
“Because there are no discrete fact issues at the punishment phase of a non-
capital trial, . . . the definition of ‘relevant,’ as stated in Rule 401 of the Texas Rules of
Evidence, does not readily apply to Article 37.07.” Sims v. State, 273 S.W.3d 291, 295
(Tex. Crim. App. 2008); see TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1); TEX. R.
EVID. 401 (defining relevant evidence). “What is ‘relevant’ to the punishment
determination is simply that which will assist the fact finder in deciding the appropriate
sentence in a particular case.” Sims, 273 S.W.3d at 295.
ii. Analysis
In his brief, Lopez argues that there is nothing in Rule 404(b) that precludes a
defendant from introducing extraneous bad act evidence. See TEX. R. EVID. 404(b). We
agree that the alleged violent acts committed against Lopez by Carillo and/or his friends
or family constitute extraneous crimes within the definition of Rule 404(b). See id.However, Lopez ignores that punishment evidence in a non-capital felony trial is governed
by Article 37.07, and such violent acts constitute extraneous crimes within the definition
of Article 37.07, § 3(a). See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1); Sims, 273
S.W.3d at 295 (noting that “[p]rior to 1998, Rule 404(c) of the Texas Rules of Evidence
discussed the use of character evidence during the punishment phase. However, the
Legislature deleted Rule 404(c) in 1998, leaving Article 37.07 of the Code of Criminal
Procedure to govern the admission of evidence in a non-capital felony trial.”). By its very
terms, Article 37.07, § 3(a) allows admission of evidence of an extraneous crime or bad
17
act that is shown beyond a reasonable doubt by evidence to have been committed by the
defendant or for which he could be held criminally responsible, “notwithstanding Rules
404 and 405, Texas Rules of Evidence.” See TEX. CODE CRIM. PROC. ANN. art. 37.07
§ 3(a)(1). Here, the alleged extraneous crimes were not committed by or attributable to
Lopez and therefore not admissible under Article 37.07, § 3(a). See id.
Nevertheless, Lopez argues that the complained-of extraneous acts were relevant
to sentencing. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (“[E]vidence may be
offered by the state and the defendant as to any matter the court deems relevant to
sentencing.”). Lopez notes that the extramarital relationship between Monica and Carillo
was relevant to punishment, in part because this relationship resulted in Lopez being
assaulted twice by Carillo, which Lopez claims the jury could have viewed as a mitigating
factor, retribution for this crime, and demonstrates “some basis of [Lopez’s] anger.” He
states that “[t]here is no logical basis to conclude that the fact the acts were those of a
third party negates the relevancy of the evidence proffered.” Lopez does not provide legal
authority for the proposition that extraneous crimes or bad acts committed by third parties
against a defendant is “relevant” to sentencing under Article 37.07, and we have found
none. Nonetheless, we assume but do not decide that the trial court erred by sustaining
the State’s objections, and we proceed to determine whether the errors were harmless.
See TEX. R. APP. P. 44.2.
Generally, errors in sustaining the State’s objections to the admission of a
defendant’s evidence are non-constitutional. Easley v. State, 424 S.W.3d 535, 540 (Tex.
Crim. App. 2014). Such errors are only considered constitutional errors if the excluded
18
evidence formed a vital portion of the defendant’s case. Id. Evidence forms a vital portion
of a defendant’s case if the exclusion effectively prevents the defendant from presenting
a defense. See id. We note that Lopez changed his plea of “not guilty” to “guilty” during
the guilt-innocence phase of his trial and the proffered evidence was for purposes of
punishment. We note that Lopez does not argue that the trial court’s ruling prevented him
from presenting a defense at punishment, and the record demonstrates he presented two
character witnesses during the punishment phase. During his closing arguments for the
punishment phase, Lopez admitted his actions were shameful and inappropriate for the
community, that “[n]o one deserves that” and “[t]here is no excuse” for severely assaulting
Monica. Lopez suggested, among other things, that his guilty plea was an acceptance of
responsibility and a mitigating factor, and asked the jury to consider community
supervision. In light of the circumstances here, we hold that the trial court’s exclusion of
the proffered evidence did not preclude Lopez from presenting a defense. Therefore, the
alleged errors are non-constitutional. See id.Non-constitutional errors that do not affect the defendant’s substantial rights must
be disregarded. See TEX. R. EVID. 103(a); TEX. R. APP. P. 44.2(b); Morales v. State, 32
S.W.3d 862, 867 (Tex. Crim. App. 2000). A substantial right is affected if the error had a
substantial and injurious effect or influence in determining the jury’s verdict. See Morales,
32 S.W.3d at 867. When evaluating harm from non-constitutional error flowing from the
exclusion of relevant evidence, we examine the record as a whole, and if we are fairly
assured that the error did not influence the jury or had but a slight effect, we conclude
that the error was harmless. Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005)
19
(citing Morales, 32 S.W.3d at 867).
In this case, Lopez changed his plea of “not guilty” to “guilty” during the guilt-
innocence phase of his trial after the State presented its first witness. Pineda testified that
he had witnessed Lopez strike Monica “all over” with his fists and stomp Monica’s face
with his feet while she was on the floor, using her arms to protect herself. Pineda also
testified that he grabbed Lopez twice to get him off of Monica before Lopez stopped his
assault. The evidence demonstrated that during the 911 call made after the assault,
Monica told the operator that Lopez had stomped on her face and hands because she
told Lopez she was leaving him. The State presented evidence as to the severity of
Monica’s injuries which included a broken nose, a contusion to the eye that was nearly
swollen shut, and a contusion on her left hand. Maria Luther, Monica’s mother, testified
that she took care of Monica after the 2017 assault by Lopez, providing her a private room
in her home. Luther testified that during this time, Monica was quiet, wouldn’t come out
of the room, and appeared to be in pain.
In his brief, Lopez argues that the proffered testimony would have provided the
jury insight into Lopez’s relationship with Monica and would have revealed additional facts
underlying Lopez’s anger. However, Lopez does not explain how evidence of his anger
would have been mitigating. Nonetheless, the evidence presented at the punishment
phase provided a sufficient factual basis for the jury to readily evaluate Lopez and
Monica’s contentious relationship and Lopez’s anger. Both Pineda and Monica testified
as to Monica’s extramarital affair with Carillo. Monica testified regarding an extraneous
offense from 2012 where Lopez punched Monica in the face after her daughter’s birthday
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party and that she felt this incident was her fault because she cheated on Lopez. Monica
also testified that Lopez knew about her aneurysm shortly after this incident. Luther also
testified regarding another extraneous offense committed by Lopez in 2012. Luther
testified she observed that Monica had a swollen bite mark and bruising on her forehead
and that Monica had told Luther that she got those injuries from Lopez.
We also note that during his closing argument, Lopez stated to the jury “[n]o one
deserves that,” “[t]here is no excuse,” and that “[i]n pleading guilty, all those elements of
that charge, [Lopez’s] admitting to. He’s saying, yes, I did it. Beyond a reasonable doubt
I did it. Those actions are shameful. They’re shameful. They’re inappropriate in our
community. No one is going to argue differently.” Lopez also stated that he had “done
right” by pleading guilty, and that it was a “sacrifice” made for the benefit of Monica and
other witnesses, and that it was an acceptance of responsibility, which he suggested was
mitigating. Lopez asked the jury to consider the best interest of his children and
grandchildren, and give him community supervision. Given his closing arguments, we
cannot say that the excluded evidence went to the heart of Lopez’s defense on
punishment. See Melgar v. State, 236 S.W.3d 302, 309 (Tex. App.—Houston [1st. Dist.]
2007, pet. ref’d.) (finding harmful error where excluded evidence “went to the heart of
appellant’s sole defense”).
Lopez argues that the excluded evidence would have established that he had been
subjected to some punishment in the form of a beating that could be considered
mitigating. We construe this argument as referencing the incident where Lopez was
allegedly beat up by Carillo, his friends, or his family. We note that Monica testified that
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she had merely heard that Carillo or his friends or family had beaten up Lopez after Lopez
assaulted Monica in 2017, she did not witness this beating, but saw Lopez’s injuries. The
proffered testimony did not make clear exactly when the alleged beating occurred, or why
it happened. 4 After reviewing the record as a whole, including Lopez’s plea of guilty to
the 2017 assault against Monica, the evidence of her resulting injuries, the evidence of
Lopez’s previous assaults against Monica, and Lopez’s arguments at closing, we
conclude that the trial court’s alleged error in excluding the proffered testimony of the
beating incident did not influence the jury, or had but a slight effect. See Ray, 178 S.W.3d
at 846. Likewise, after reviewing the record as a whole, we conclude that the trial court’s
alleged error in excluding the proffered testimony of the knife incident did not influence
the jury, or had but a slight effect. See id.Therefore, we conclude that any alleged error in excluding the proffered evidence
of the violent acts against Lopez was harmless non-constitutional error that did not affect
his substantial rights and must be disregarded. See TEX. R. EVID. 103(a); TEX. R. APP. P.
44.2(b); Ray, 178 S.W.3d at 836. We overrule this sub-issue and the entirety of Lopez’s
first point of error.
B. Carillo’s Assault of Monica
To preserve error for appellate review, Lopez was required to make a timely
objection or make a request or motion to apprise the trial court that it sought admission
of Monica’s testimony of Carillo’s assault of her. See Dollins, 460 S.W.3d at 698 (citing
4 In connection to this beating incident, Monica was asked if she remembered when Lopez was
injured and she replied that she did not remember. When asked the follow-up question of whether it
happened before or after his 2017 assault of her, Monica replied it was after.
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TEX. R. APP. P. 33.1(a)). The record demonstrates that Lopez neither requested nor
obtained a ruling from the trial court regarding the admission of Monica’s testimony
related to Carillo’s assault of Monica in 2020 or 2021. Accordingly, Lopez failed to
preserve his complaint, and we overrule his second point of error. See id.
IV. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
27th day of October, 2022.
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