Opinion filed June 30, 2015

In The

Eleventh Court of Appeals 

__________

No. 11-13-00139-CR

__________

ROBERT MUNOZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CR 38,496

M E M O R A N D U M O P I N I O N

Robert Munoz appeals his convictions by a jury for two counts of sexual 

assault of a child younger than seventeen years of age. TEX. PENAL CODE ANN.

§ 22.011(a)(2)(A), (c)(1) (West 2011). The trial court assessed Appellant’s 

punishment at confinement in the Institutional Division of the Texas Department of 

Criminal justice for a term of ten years on each count with the sentences to be served 

consecutively. Appellant brings four issues on appeal. He argues in his first three 
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issues that the trial court erred when it admitted the following evidence: 

(1) testimony that a witness had previously been convicted of hindering 

Appellant’s apprehension, (2) testimony concerning Appellant’s violation of his 

agreement with his bail bondsman, and (3) testimony of Appellant’s pre-arrest 

silence. In his fourth issue, Appellant asserts that he received ineffective assistance 

of counsel at trial. We affirm. 

Background Facts

M.A.K. was fifteen years old at the time of the conduct charged in the 

indictment. She testified that her mother, Elizabeth, worked with Appellant at 

Prepaid Legal Services. Although Appellant was already married with children, 

Elizabeth and Appellant began a romantic relationship. Elizabeth would bring 

M.A.K. and her younger brother, W.W.K., over to Appellant’s house to “hang out 

and go to the movies and just be around each other.” Occasionally, M.A.K. would 

stay the night at Appellant’s house with Elizabeth and W.W.K. Elizabeth would 

sleep with Appellant while M.A.K. and W.W.K. would sleep on a pallet in the living 

room.

Elizabeth, M.A.K., and W.W.K. stayed at Appellant’s house during the 2007–

2008 Christmas vacation. The night before returning to school, M.A.K. woke up in 

the middle of the night because she “felt pressure on [her] leg. It felt like -- it felt 

like a hand on [her] leg.” M.A.K. felt the hand on her upper thigh, and the hand 

moved up her leg, under her shorts. M.A.K. said that she felt the hand go under her 

underwear and penetrate her in her “no-no spot.”1 M.A.K. testified that it was 

Appellant’s fingers and that he moved his fingers “in and out and around.” M.A.K. 

then turned over and began to hyperventilate. Appellant ran into the kitchen, and 

 

1M.A.K. subsequently clarified her meaning of “no-no spot” as a female’s genital area.
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Elizabeth came out of the bedroom. Elizabeth told M.A.K. to “shut up and go to 

sleep because [she] had school the next morning.” 

The next morning, M.A.K. told her mother that Appellant had touched her. 

Elizabeth got upset and told M.A.K. to shut up and go to school. When M.A.K. 

arrived home from school, Elizabeth confronted her in the presence of Appellant and 

asked if what she had said was true. M.A.K testified that, when she answered in the 

affirmative, Appellant said, “If I did do anything, I didn’t mean to.” M.A.K. then 

left the room at the request of Elizabeth. A week later, M.A.K. was sleeping at her 

house when she was awakened by a hand on her thigh. She “felt a hand move up 

[her] leg and under [her] underwear, and his fingers penetrated [her] no-no spot.” 

M.A.K. turned over, and Appellant ran from the room. M.A.K. did not tell her 

mother about the second time “[b]ecause she didn’t believe [M.A.K.] the first time.”

M.A.K. did not report the incidents to the authorities until December 2010. 

M.A.K. called the police to report that Appellant had assaulted her mother. While 

M.A.K. was talking to the police about the assault on her mother, she also told them 

about the sexual assaults that Appellant had committed against M.A.K.

At the time of trial, the romantic relationship between Elizabeth and Appellant

continued to exist. Elizabeth was called by the State as a witness. Elizabeth’s 

testimony supported Appellant’s position at trial rather than her daughter’s 

allegations. With regard to the first incident, Elizabeth testified that M.A.K. told her 

that Appellant had touched her. However, Elizabeth said that she “confronted them, 

and [M.A.K.] said it wasn’t true.” Elizabeth also denied that she fought with 

Appellant the night M.A.K. called the police. Two weeks prior to trial, Elizabeth 

recorded M.A.K. in an effort to get her to recant.

Analysis

Appellant’s first three issues address the admissibility of evidence at trial. We 

review a trial court’s ruling on admissibility of evidence for an abuse of discretion. 
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See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We will uphold 

the trial court’s decision unless it lies outside the zone of reasonable disagreement.

Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001).

In his first issue, Appellant argues that the trial court erred when it permitted 

the State to question Elizabeth about charges filed against her for hindering 

Appellant’s apprehension. The prosecutor initially asked Elizabeth, “You love the 

Defendant as much as you love your children; isn’t that correct? . . . Isn’t it true you 

went to jail for the Defendant?” Appellant’s trial counsel lodged a general relevancy

objection to these questions. The prosecutor responded that “[w]e’re showing it for 

the motive and bias of the testimony of the witness.” The trial court overruled 

Appellant’s objection but instructed the jury to only consider Elizabeth’s responses 

for the purpose of showing the motive and bias of the witness. When asked by the 

prosecutor if she had gone “to jail for the Defendant,” Elizabeth responded, “They 

put me in jail.” The prosecutor then asked Elizabeth, “Did you go to jail for the 

offense of hindering apprehension, the apprehension of the Defendant?” to which 

she replied in the affirmative. Appellant’s trial counsel did not lodge an objection 

to the prosecutor’s subsequent question that identified the particular offense for 

which Elizabeth was incarcerated.

Appellant contends that the subsequent identification of the offense was 

cumulative of the previous evidence of Elizabeth’s motive or bias. He additionally 

contends that this evidence was unfairly prejudicial under Rule 403 and that the 

“impact of this cumulative evidence was that jurors could wrongly infer that, as 

Appellant’s lover, [Elizabeth] was attempting to aid Appellant in avoiding 

apprehension.” Further, Appellant contends that the testimony shows that, if 

Elizabeth “was placed on probation for hindering his apprehension, then Appellant 

himself must have been attempting to evade apprehension – and therefore guilty of 

the charges.” See TEX. R. EVID. 403. However, Appellant’s trial counsel did not 
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lodge an objection to the prosecutor’s follow-up question. Accordingly, Appellant’s 

complaints on appeal were not preserved for appellate review. See TEX. R.

APP. P. 33.1. We overrule Appellant’s first issue.

In his second issue, Appellant argues that the trial court erred when it admitted 

the testimony of Chris Barrientes, Appellant’s bail bondsman, “about the conditions 

of Appellant’s bond, and the reasons why the bonding company went off Appellant’s 

bond.” Appellant argues that this testimony was not relevant to the issue of 

Appellant’s guilt and that, even if it was relevant, its prejudicial effect outweighs its 

probative value. Appellant’s trial counsel lodged a general relevancy objection to 

the initial question pertaining to the conditions of Appellant’s bond. The prosecutor 

responded to this objection by asserting that the information was relevant to a trip to 

Cancun that Appellant raised in his cross-examination of M.A.K. The trial court 

overruled this objection.

The prosecutor then asked Barrientes about the details of the conditions of 

Appellant’s bond. Appellant’s trial counsel objected on the basis of hearsay to a 

response wherein Barrientes stated that Appellant told the bonding company that he 

did not have a passport. The trial court overruled this objection after the prosecutor 

stated that Appellant’s statement constituted an admission of a party-opponent. The 

prosecutor then elicited testimony from Barrientes to the effect that Appellant did 

not state that he had any intentions of traveling out of the country, that the bonding 

company would not have permitted him to travel out of the country for leisure 

purposes, and that the bonding company ultimately went off his bond for a variety 

of reasons. Barrientes also testified during cross-examination by Appellant’s trial 

counsel that “Marshals” had shown up at the bonding company seeking information

about Appellant. The subsequent questioning occurred without objection from 

Appellant’s trial counsel. 
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We disagree with Appellant’s contention that Barrientes’s testimony was not 

relevant to the issue of Appellant’s guilt. As correctly noted by the State, Appellant 

raised the matter of the trip to Cancun during the cross-examination of M.A.K. when 

defense counsel questioned her about a trip to Cancun in 2011. Two photographs of 

Appellant and M.A.K. swimming together were introduced into evidence. Defense 

counsel attempted to show that M.A.K. and Appellant had a close relationship even 

after she made allegations to the authorities. Accordingly, Appellant “opened the 

door” to details pertaining to the trip. See Bowley v. State, 310 S.W.3d 431, 435 

(Tex. Crim. App. 2010) (“[A] party who ‘opens the door’ to otherwise inadmissible 

evidence risks the adverse effect of having that evidence admitted.”). We conclude 

that the trial court did not abuse its discretion by overruling Appellant’s relevancy 

objection to the details of Appellant’s bond conditions regarding foreign travel.

With respect to Appellant’s argument under Rule 403, this contention was not 

preserved for appellate review with a sufficient objection. A general relevance 

objection is insufficient to invoke a ruling from the trial court on whether the 

evidence is subject to exclusion on the ground of unfair prejudice under Rule 403. 

See Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991). 

Furthermore, most of Barrientes’s testimony pertaining to the details of Appellant’s 

bond was admitted without objection. Accordingly, we overrule Appellant’s second 

issue.

Appellant’s third issue challenges the admission of evidence that he refused

to talk to Investigator Chris Fuentes about M.A.K.’s allegations or Detective Kay

Therwhanger about extraneous offenses that he allegedly committed. Citing 

Jenkins v. Anderson, 447 U.S. 231, 238 (1980), Appellant alleges that his pre-arrest 

silence cannot be used against him because he did not testify in this case.

Investigator Fuentes testified that he called Appellant on March 7, 2011, and 

asked him “if he would be willing to give me a statement of his own free will.” 
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Appellant initially agreed to give a statement to Investigator Fuentes. However, 

Investigator Fuentes testified that Appellant subsequently informed him that he 

would not give “any statement without his lawyer being present and that he would 

contact me back at a later time.” Investigator Fuentes did not speak with Appellant 

again.

Detective Therwhanger testified that she called Appellant to discuss 

extraneous offenses involving A.H., a ten-year-old girl who testified that Appellant 

had touched her in a similar fashion on several occasions. Detective Therwhanger 

simply testified that she attempted to contact Appellant and that he declined to speak 

with her.

There is no evidence in the record of the date that Appellant was arrested. 

However, Investigator Fuentes testified that his contact with Appellant occurred 

prior to Appellant’s arrest. Furthermore, Appellant states in his brief that his silence 

was pre-arrest, pre-Miranda. Miranda v. Arizona, 384 U.S. 436 (1966). 

The Court of Criminal Appeals and the Supreme Court of the United States 

have both held that pre-arrest, pre-Miranda silence is admissible evidence against a 

non-testifying defendant as substantive evidence of guilt. Salinas v. State, 369 

S.W.3d 176, 179 (Tex. Crim. App. 2012), aff’d, Salinas v. Texas, 133 S. Ct. 2174, 

2182–83 (2013). A defendant must expressly invoke his right against selfincrimination; mere silence is not enough. Salinas, 133 S. Ct. 2183–84. While 

Appellant refused to talk to either Investigator Fuentes or Detective Therwhanger, 

he did not expressly say he was doing so based on the Fifth Amendment. Appellant 

simply refused to speak to them. This was not enough to invoke his rights under the 

Fifth Amendment and Miranda. Id. at 2182–84; Salinas, 369 S.W.3d at 179. Thus, 

the trial court did not abuse its discretion when it admitted testimony concerning 

Appellant’s pre-arrest, pre-Miranda silence. We overrule Appellant’s third issue. 
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In his fourth issue, Appellant contends that his trial counsel rendered 

ineffective assistance of counsel during the guilt/innocence phase of trial in seven 

respects: (1) when he failed to invoke Rule 403, or request a balancing test, when 

the State offered evidence of Elizabeth’s conviction for hindering Appellant’s 

apprehension; (2) when he failed to invoke Rule 403, or request a balancing test,

when the State offered the bail bondsman’s testimony; (3) when he failed to object 

to the bondsman’s nonresponsive testimony regarding marshals coming to the 

bonding office to look at Appellant’s file and failed to request an instruction to 

disregard and a mistrial; (4) when he failed to make a relevance objection to the bail 

bondsman’s testimony regarding the reasons why the bonding company went off 

Appellant’s bond; (5) when he failed to make a relevance objection, invoke 

Rule 403, request a balancing test, or make a Fifth Amendment objection to 

Investigator Fuentes’s testimony about Appellant’s refusal to give a statement; 

(6) when he failed to make a relevance objection, invoke Rule 403, request a 

balancing test, or make a Fifth Amendment objection to Detective Therwhanger’s 

testimony about Appellant’s refusal to give a statement; and (7) when he failed to 

make an offer of proof after the trial court excluded certain evidence. Appellant 

specifically cites five pieces of evidence that were excluded by the trial court, 

including posts by the complainant and the complainant’s brother on Facebook, an 

incident involving the complainant touching Appellant’s buttocks with her foot, the 

testimony of Dr. Jarvis Wright, and a recorded phone call between Appellant and 

witness Albert Palmer. 

To determine whether Appellant’s trial counsel rendered ineffective 

assistance at trial, we must first determine whether Appellant has shown that 

counsel’s representation fell below an objective standard of reasonableness and, if 

so, then determine whether there is a reasonable probability that the result would 

have been different but for counsel’s errors. Wiggins v. Smith, 539 U.S. 510 (2003); 
9

Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98 

(Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). 

We must indulge a strong presumption that counsel’s conduct fell within the wide 

range of reasonable professional assistance, and Appellant must overcome the 

presumption that, under the circumstances, the challenged action might be

considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 

S.W.3d 707, 712 (Tex. Crim. App. 2000). “[C]ounsel is strongly presumed to have 

rendered adequate assistance and made all significant decisions in the exercise of 

reasonable professional judgment.” Strickland, 466 U.S. at 690. An allegation of 

ineffective assistance must be firmly founded in the record, and the record must 

affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. 

Under normal circumstances, the record on direct appeal will not be sufficient to 

show that counsel’s representation was so deficient and so lacking as to overcome 

the presumption that counsel’s conduct was reasonable and professional. Bone v. 

State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the record on direct 

appeal contain sufficient information to permit a reviewing court to fairly evaluate 

the merits of such a serious allegation. Id. In this case, the record is silent as to the 

reasoning behind trial counsel’s actions and decisions.

The bulk of Appellant’s claims of ineffective assistance of counsel are 

premised on trial counsel’s failure to object on various grounds. When alleging 

ineffective assistance of counsel for failure to object, an appellant must demonstrate 

that the trial court would have erred in overruling an objection if trial counsel had 

made one. See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). 

Many of Appellant’s claims are based on the lack of an objection under 

Rule 403. This rule provides that relevant evidence may be excluded if its probative 

value is substantially outweighed by the danger of unfair prejudice, confusion of the 

issues, or misleading the jury or by considerations of undue delay or needless 
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presentation of cumulative evidence. See Young v. State, 283 S.W .3d 854, 874 (Tex. 

Crim. App. 2009). An analysis under Rule 403 includes, but is not limited to, the 

following factors: (1) the probative value of the evidence, (2) the potential to impress 

the jury in some irrational yet indelible way, (3) the time needed to develop the 

evidence, and (4) the State’s need for the evidence. Hernandez v. State, 390 S.W.3d 

310, 324 (Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. 

Crim. App. 2006). 

Appellant contends that the probative value of Elizabeth’s testimony 

regarding her conviction for hindering Appellant’s apprehension was outweighed by 

the danger of unfair prejudice. Appellant is essentially asserting that the trial court 

would have erred by overruling an objection under Rule 403 to this testimony. We 

disagree. Under Rule 403, it is presumed that the probative value of relevant 

evidence outweighs any danger of unfair prejudice. Hammer v. State, 296 S.W.3d 

555, 568 (Tex. Crim. App. 2009). As noted previously, the State sought to offer 

evidence of Elizabeth’s conviction for hindering Appellant’s apprehension to show 

motive or bias on her part in favor of Appellant. The fact that the offense involved 

Appellant’s apprehension for the charged offenses is not unduly prejudicial because 

evidence of flight or escape is admissible as a circumstance from which an inference 

of guilt may be drawn. See Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App.

1989). 

In his second claim of ineffective assistance of counsel, Appellant contends 

that his trial counsel should have objected to Barrientes’s testimony under Rule 403. 

In his third claim, he contends that his trial counsel should have objected to the 

nonresponsive nature of Barrientes’s response about marshals coming to look at 

Appellant’s file. In his fourth claim, Appellant contends that his trial counsel should 

have objected to the relevancy of the reasons why the bonding company went off 

Appellant’s bond. As with the case of Elizabeth’s testimony, the testimony from 
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Barrientes that Appellant contends his trial counsel should have challenged relates

to Appellant’s possible flight from the authorities while the case was pending. As 

noted previously, evidence of flight is admissible as a circumstance of guilt. Id.; see 

Cantrell v. State, 731 S.W.2d 84, 93 (Tex. Crim. App. 1987) (evidence of bond 

forfeiture may be admissible as tending to show flight). We cannot conclude that 

the trial court would have erred in overruling the objections that Appellant contends 

his trial counsel should have made to Barrientes’s testimony.

In his fifth and sixth claims of ineffective assistance of counsel, Appellant 

contends that his trial counsel provided ineffective assistance because he failed to 

object under Rule 403 during Investigator Fuentes’s testimony about Appellant’s 

refusal to give a statement and because he failed to make a relevance objection, a 

Rule 403 objection, or a Fifth Amendment objection during Detective 

Therwhanger’s testimony that Appellant refused to give a statement. As discussed 

in issue three above, it was not error for the trial court to admit the testimony 

concerning Appellant’s pre-arrest, pre-Miranda silence. Salinas, 133 S.Ct. at 2182–

84; Salinas, 369 S.W.3d at 179. Accordingly, the record does not demonstrate that 

Appellant’s trial counsel’s actions were unreasonable. 

In his seventh claim of ineffective assistance of counsel, Appellant argues that 

trial counsel failed to make an offer of proof for excluded evidence, including 

Facebook postings by M.A.K. and M.A.K.’s brother, an incident between M.A.K. 

and Appellant where M.A.K. touched Appellant with her foot, the testimony of 

Dr. Wright, and a recorded phone call between Appellant and Palmer while 

Appellant was in jail.

During cross-examination of M.A.K., defense counsel attempted to question 

her about a Facebook post she made. The State objected on the basis of hearsay, and 

the trial court overruled the objection. M.A.K. then answered the question. Because 

no evidence was excluded, no offer of proof was necessary. Thus, Appellant has not 
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shown that trial counsel’s actions were deficient in this regard. During crossexamination of M.A.K.’s brother, defense counsel questioned him about a Facebook 

post. The State objected on the basis of hearsay, and the trial court sustained the 

objection. The record is silent as to why defense counsel wanted the testimony 

concerning the Facebook post before the jury. Accordingly, Appellant’s argument 

does not satisfy the second prong of Strickland because the record does not indicate 

how that testimony would have influenced the outcome. Strickland, 466 U.S. at 691. 

Ineffective assistance of counsel claims “must be firmly founded in the record.” 

Thompson, 9 S.W.3d at 813. 

Defense counsel attempted to cross-examine M.A.K. about an alleged 

incident where M.A.K. touched Appellant with her foot. The trial court excluded 

evidence of this specific act of physical conduct. The record does not demonstrate 

why defense counsel did not make an offer of proof, what the exact testimony would 

have been, and if that testimony would benefit Appellant. Thus, this claim is also 

not firmly founded in the record. Id. Appellant has failed to show that the excluded 

testimony would have had any effect on the outcome. Strickland, 466 U.S. at 691. 

Dr. Wright, a psychologist, was called by the defense to discuss the home 

environment and the relationship between Appellant, his family, and M.A.K.’s 

family. The State conducted a voir dire examination of Dr. Wright outside the 

presence of the jury to determine the relevancy of his testimony. After extensive 

questioning by both the State and defense counsel during the voir dire examination, 

the trial court excluded Dr. Wright’s testimony because “there’s been no showing 

that this will assist the trier of fact in understanding the evidence or determine a fact 

in issue.” All of Dr. Wright’s testimony during the voir dire examination was 

included in the record. Thus, defense counsel essentially made an offer of proof of 

Dr. Wright’s excluded testimony. Accordingly, Appellant has failed to demonstrate 

that his trial counsel was ineffective in this regard.
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Finally, defense counsel attempted to introduce a recorded phone call between 

Appellant and Palmer during Palmer’s redirect examination. The phone call 

involved the same alleged incident between Appellant and M.A.K. as noted above

pertaining to M.A.K. allegedly touching Appellant’s buttocks with her foot. The 

record is silent as to why the excluded evidence would be beneficial to Appellant or 

why trial counsel did not make an offer of proof. Thus, Appellant has not overcome 

the presumption that trial counsel’s actions were reasonable. Id. at 690. We overrule 

Appellant’s fourth issue.

This Court’s Ruling

We affirm the judgments of the trial court. 

JOHN M. BAILEY 

JUSTICE

June 30, 2015

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

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.