NUMBER 13-13-00572-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

JESUS ALEJANDRO RODRIGUEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 357th District Court

of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Perkes

Memorandum Opinion by Justice Benavides

By five issues, appellant Jesus Alejandro Rodriguez appeals his conviction for 

capital murder. See TEX. PENAL CODE ANN. § 19.03(a) (West, Westlaw through 2015 

R.S.). Rodriguez asserts on appeal that: (1) his confession to U.S. authorities, taken in 

Mexico, was involuntary; (2) the trial court erred by allowing the State to submit four 
2

alternative theories of capital murder which denied him the right to an unanimous verdict; 

(3) the trial court committed reversible error by denying his requested jury instruction on 

specific voluntariness1; (4) the trial court committed error by admitting hearsay evidence; 

and (5) the trial court committed error by allowing extraneous offenses into evidence. 

We affirm.

I. BACKGROUND

On March 1, 2005, Alex Villarreal’s deceased body was found in a canal outside 

of San Benito, Texas. Villarreal had been a witness to the murder of Juan Hernandez 

that occurred on October 1, 2004. Villarreal was scheduled to testify against Rene 

Garcia, who faced charges for Hernandez’s murder. The investigation into Villarreal’s 

death led authorities to believe Rodriguez was involved in Villarreal’s murder. 

On August 2, 2005, Cameron County Sheriff’s Deputies received a phone call from 

the State Judicial Police in Matamoros, Tamaulipas, Mexico, that they had arrested 

Rodriguez, and offered the deputies the opportunity to speak with him. That same day, 

Captain Jose Garza, Lieutenant Domingo Diaz, and Investigator Victor Alvarado of the 

Cameron County Sheriff’s Office traveled to Matamoros to speak with Rodriguez.

Mexican authorities allowed the U.S. investigators to meet with Rodriguez in an 

interrogation room while one of their officers was present to videotape the interrogation. 

Prior to giving his statement to U.S. authorities, the sheriff’s deputies read Rodriguez his 

Miranda rights and Rodriguez waived each one.2 The reading of Rodriguez’s Miranda

 

1 Defendants can be entitled to a jury instruction related to specific facts surrounding the 

voluntariness of their statements. See TEX. CODE OF CRIM. PROC. ANN. art. 38.23 (West, Westlaw through 

2015 R.S.). 

2 See Miranda v. Arizona, 384 U.S. 436 (1966). 
3

rights, as well as his respective waivers, were captured on videotape. In his statement, 

Rodriguez admitted to shooting Villarreal three times with a .9mm handgun.

Following his arrest in 2011, Rodriguez sought to suppress his statement to the 

Cameron County Sheriff’s Investigators. During a pre-trial suppression hearing, 

Rodriguez testified that Mexican authorities beat and tortured him, which caused him to 

give an involuntary statement to the sheriff’s investigators regarding his role in Villarreal’s 

murder. The trial court denied Rodriguez’s motion to suppress and expressly stated on 

the record that it did not believe Rodriguez’s testimony that he was abused by Mexican 

authorities. The trial court also found the Cameron County authorities had no causal 

connection to the Mexican authorities. 

Following a jury trial on guilt-innocence, Rodriguez was found guilty of capital 

murder and automatically sentenced to life in prison in the Texas Department of Criminal 

Justice–Institutional Division. See TEX. PENAL CODE ANN. §§ 19.03(a), 12.31(a)(2) 

(West, Westlaw through 2015 R.S.). This appeal followed. 

II. VOLUNTARY CONFESSION GIVEN

By his first issue, Rodriguez argues that the trial court committed reversible error 

by denying his motion to suppress his confession because it was not voluntarily given 

when taken by Cameron County Sheriff’s officials in Mexico. To support this contention, 

Rodriguez claims the statement was given as a result of coercion, physical abuse, and 

implied threats by Mexican authorities. 

A. Standard of Review

We review a trial court’s suppression ruling under a bifurcated standard. Hubert 

v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). Appellate courts must view all of 
4

the evidence in the light most favorable to the ruling. Vasquez v. State, 453 S.W.3d 555, 

564 (Tex. App.—Houston [14th Dist.] 2014, pet. granted). The trial court is the “‘sole 

and exclusive trier of fact and judge of the credibility of the witnesses and evidence 

presented at a hearing on a motion to suppress, particularly when the motion is based on 

the voluntariness of a confession.” Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. 

App. 2007). Regarding findings of fact, especially when those findings are based on an 

evaluation of credibility and demeanor, we review the trial court’s rulings under an abuse 

of discretion standard. See Xu v. State, 191 S.W.3d 210, 215 (Tex. App.—San Antonio 

2005, no pet.); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford 

almost total deference to a trial court’s determination of historical facts supported by the 

record. See id. However, “the trial court’s resolution of mixed questions of law and 

fact, which does not turn on an evaluation of credibility and demeanor, is reviewed de 

novo.” Xu, 191 S.W.3d at 215. The court of appeals is obligated to “uphold the trial 

court’s ruling on appellant’s motion to suppress if that ruling was supported by the record 

and was correct under any theory of law applicable to the case.” Armendariz v. State, 

123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (en banc).

B. Applicable Law

The “United States Supreme Court has held that the determination as to whether 

a confession was voluntarily rendered must be analyzed by examining the totality of the 

circumstances.” Delao, 235 S.W.3d at 239; see Arizona v. Fulminante, 499 U.S. 279, 

285–86, 111 S.Ct. 1246 (1991). When a defendant “moves to suppress a statement on 

the ground of ‘involuntariness,’ the due process guarantee requires the trial court to hold 

a hearing on the admissibility of the statement outside the presence of the jury.” 
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Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) (en banc). “The burden 

of proof at the hearing on admissibility is on the prosecution, which must prove by a 

preponderance of the evidence that the defendant’s statement was given voluntarily.” 

Id; see Colorado v. Connelly, 479 U.S. 157, 169, 107 S.Ct. 515, 523 (1986). 

“A statement is ‘involuntary,’ for the purposes of federal due process, only if there 

was official, coercive conduct of such a nature that any statement obtained thereby was 

unlikely to have been the product of an essentially free and unconstrained choice by its 

maker.” Alvarado, 912 S.W.2d at 211. “The focus is on whether the behavior of the 

State’s law enforcement officials was such as to overbear the will of the accused and 

bring about a confession not freely determined.” Green v. State, 934 S.W.2d 92, 99–

100 (Tex. Crim. App. 1996). “Courts look to whether the voluntary relinquishment was 

‘the product of a free and deliberate choice rather than intimidation, coercion, or 

deception.” Martinez-Hernandez v. State, 04-13-00820-CR, ___S.W.3d___, 2015 WL 

3775293, at *6 (Tex. App.—San Antonio, no pet. h.) (quoting Joseph v. State, 309 S.W.3d 

20, 24 (Tex. Crim. App. 2010)); see Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135 

(1986). “Only when the totality of the circumstances surrounding the interrogation, 

including defendant’s experience, background, and conduct, show an ‘uncoerced choice’ 

was made with full awareness of the nature of the right and the consequences of 

abandoning that right may a court properly conclude that the Miranda rights were 

knowingly, intelligently, and voluntarily waived.” Id. (quoting Joseph, 309 S.W.3d at 24). 

“Absent [coercive] police conduct causally related to the confession, there is simply no 

basis for concluding that any state actor has deprived a criminal defendant of due process 

of law. Alvarado, 912 S.W.2d at 211 (citing Connelly, 479 U.S. at 164). 
6

C. Discussion3

Rodriguez contends that he was abused at the hands of Mexican authorities and 

the abuse caused his statement to be involuntary. In order for the actions of Mexican 

authorities to invalidate Rodriguez’s statement, there must be a causal connection or 

direct relationship between the Mexican police alleged actions and the Cameron County 

Sherriff’s Office. See id. Captain Garza testified that the sheriff’s office was notified by 

the Mexican state police that Rodriguez was in their custody for an unrelated offense that 

took place in Mexico. Captain Garza stated that in 2005, the two offices communicated 

about defendants in their respective custodies who had active warrants in either 

jurisdiction, but that was the extent of the two agencies’ interaction. Once he was alerted 

by Mexican authorities of Rodriguez’s arrest, Captain Garza, along with two fellow 

deputies, traveled to Matamoros, Mexico to speak with Rodriguez. 

Upon arrival, Captain Garza gave the Mexican authorities copies of Rodriguez’s 

active U.S. warrants, but did not provide the Mexican authorities with factual details 

regarding those arrest warrants. Captain Garza testified that his officers were then 

allowed to speak to Rodriguez. Captain Garza stated that Rodriguez was given his 

statutory Miranda warnings multiple times, indicated he understood those warnings, 

waived them each time, and gave a statement freely and voluntarily. Rodriguez then

gave both a written and oral statement to the Cameron County Sherriff’s deputies in 

 

3 Although Rodriguez’s motion was titled “Motion to Suppress,” once the issue of coercion to 

obtain the confession was brought forth by Rodriguez, the trial court conducted a hearing on the issue of 

voluntariness of the statement during the suppression hearing. Although the trial court is required to enter 

written findings of fact and conclusions of law following a voluntariness hearing, the trial court is allowed to 

dictate its findings and conclusions into the reporter’s record. See Murphy v. State, 112 S.W.3d 592, 601 

(Tex. Crim. App. 2003) (en banc); TEX. CODE CRIM. PROC. ANN. art. 38.22 (West, Westlaw through 2015 

R.S.). The trial court in this case performed the latter, and thus, satisfied the requirement in Article 38.22. 
7

Mexico. At the pre-trial hearing, the State conceded the written statement did not comply 

with the requirements of Article 38.22 of the code of criminal procedure. See TEX. CODE 

CRIM. PROC. ANN. art. 38.22. The State notified the trial court and Rodriguez during the 

pre-trial hearing that they would not use the written statement unless necessary for 

rebuttal during the course of trial. 

In his statement, Rodriguez told the sheriff’s investigators that on the day Villarreal 

went missing, Villarreal picked him up in Villarreal’s vehicle, and the two drove around 

drinking alcohol and taking pills. While driving around with Villarreal, Rodriguez stated 

that Villarreal received a call on his cell phone, which Rodriguez answered. Rodriguez 

claimed that the person calling told Rodriguez to “get rid of” Villarreal, which Rodriguez 

interpreted as an order to kill Villarreal. Rodriguez and Villarreal drove to the area known 

as Las Piedritas, outside of San Benito, and Rodriguez shot Villarreal three times, killing 

him. Rodriguez stated he dumped Villarreal’s body into the canal. Rodriguez said he 

killed Villarreal because he was messed up on drugs and believed he would be 

compensated for the murder. Rodriguez further told authorities that he thought the 

money he got for killing Villarreal would be “his ticket to freedom out of there.” In 

addition, Rodriguez also stated that he was told by someone on the phone to take 

Villarreal’s car to the international bridge nearby and leave it there with the keys inside. 

Rodriguez complied with these orders. Rodriguez stated that following Villarreal’s 

murder, he knew he was a suspect and fled to Mexico “a day or two” after the murder, 

with his girlfriend. In the video, Rodriguez is compliant with the Cameron County 

Sheriff’s Office deputies and willingly speaks to them. During the interview, Rodriguez’s 

face appears slightly swollen on one side. Captain Garza testified that when they asked 
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Rodriguez about it, Rodriguez told them he had a toothache or problem with his tooth. 

At the end of the video interview, Rodriguez asks sheriff’s investigators whether he can 

be returned to the United States, since he was a United States citizen. 

Captain Garza testified both during the hearing and at trial, that at the time of his 

video interview, Rodriguez never told them about any abuse or mistreatment by the 

Mexican police. During his testimony at trial, Captain Garza said if Rodriguez would 

have told them about the alleged abuse, he would have stopped the interview and not 

taken a statement because it would have been improper. A few days after he returned 

from Mexico, Captain Garza testified that he received a phone call from the United States 

Consulate regarding allegations that Rodriguez was abused by Mexican authorities. 

Captain Garza said his understanding of the allegations indicated that Rodriguez had 

been beaten and had a bag placed over his head. Captain Garza testified that the 

consulate officer believed Rodriguez had been subject to abuse, but Rodriguez never 

formally complained. Despite these revelations, Captain Garza stated that he believed 

that Rodriguez’s statement was given voluntarily. Although Captain Garza agreed that 

he saw injuries consistent with the consulate officer’s notes4, when Rodriguez was asked 

about them, he told them he had fallen down and had a problem with his tooth. 

At the pre-trial suppression hearing, Rodriguez testified and stated that prior to 

Cameron County deputies arriving, the Mexican police wanted him to confess to crimes 

 

4 The United State Consulate officer’s notes indicated Rodriguez had a swollen face and bruising 

on his wrists and arms, and the consulate officer suspected abuse from Mexican authorities. The 

consulate notes were admitted as business records with the appropriate accompanying affidavit. See TEX.

R. EVID. 402 (West, Westlaw through 2015 R.S.). The time frame required for business records to selfauthenticate had not been met, but both sides agreed to waive the required time frame. See id. The 

officer was unable to be located prior to trial. 
9

that occurred in Mexico and placed a plastic bag over his head when he would not 

cooperate with them. Rodriguez testified that he passed out from the incident. He 

stated he feared for his life and felt intimidated by the Mexican authorities. Rodriguez 

testified his face was swollen in the video statement from being hit by the Mexican 

authorities. Rodriguez claimed that he refused to speak with the Cameron County 

deputies, but the Mexican police repeated the plastic bag tactic again in the presence of 

the Cameron County deputies. Rodriguez testified that he asked Garza and Diaz for 

help, but they allowed the abuse to continue. Rodriguez stated he felt forced to give the 

statement to the Cameron County authorities and only did so because he felt pressured. 

However, Rodriguez also testified that no one from the Cameron County Sheriff’s Office 

ever abused him, admitted he did understand his rights at the time he gave his statement, 

and was not forced to admit to other crimes committed in the United States while in 

Mexico.

At the end of the hearing, the trial court denied the motion to suppress and made 

its ruling on the record. The trial court stated:

I have serious doubts that the defendant’s testimony that he was abused by 

the Mexican police authorities is credible. Even if it were, there is no 

connection with any of that that ties into the actions or conduct of the 

Cameron County officials. 

I do not find that the statement that the defendant made on the video was 

coerced and that it was not voluntary. It’s plain to me that the defendant 

agreed to talk to the officers. Whether that was wise on his part, that’s 

another story; but he agreed to talk to the officers, and there is no indication 

from what I see that he was under some duress or pressure or improper 

influence to talk to them. 

And so, therefore, I will deny the motion to suppress the video statement. 

In reviewing the trial court’s ruling under an abuse of discretion, we uphold the 
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ruling that the statement was voluntarily given to Cameron County authorities. The trial 

court determines the credibility of the witnesses based on their testimony and demeanor 

during the hearing itself. In evaluating the totality of the circumstances, regarding the 

questioning of Rodriguez and his allegations of abuse, no causal connection was shown 

to exist between the actions of the Cameron County Sheriff’s Office and the actions of the 

Mexican police. Garza was asked about any relationship while he testified and stated 

they only occasionally would exchange information between the two agencies, but they 

never participated in investigations with the Mexican authorities. Additionally, the trial 

court was able to listen to the testimony of Rodriguez himself. When the trial court 

issued its findings on the record, it stated did not find Rodriguez credible or any proof of 

evidence to substantiate his claims. Accordingly, we hold that the trial court did not 

abuse its discretion by denying Rodriguez’s motion to suppress the videotaped statement 

and allowing its admission into evidence during the trial. We overrule Rodriguez’s first 

issue. 

III. JURY CHARGE WAS PROPER 

By his second issue and third issue, which we will address together, Rodriguez 

argues that the trial court committed reversible error in the jury charge by submitting four 

alternative theories for committing capital murder in one paragraph and denying his 

requested jury instruction regarding specific voluntariness of his videotaped statement. 

Rodriguez claims by not submitting separate paragraphs for each theory of capital 

murder, he was denied his right to a unanimous jury verdict and he should have been 

entitled to an article 38.23 instruction in the jury charge. See TEX. CODE CRIM. PROC. art. 

38.23.
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A. Standard of Review

In reviewing a challenge to a jury charge, we first must determine if the jury charge 

contained error. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If error 

is found, we then “analyze the harm resulting from the error.” Id. If “an error is 

preserved with a timely objection . . .then the jury-charge error requires reversal if the 

appellant suffered some harm as a result of the error.” Sanchez v. State, 376 S.W.3d

767, 774 (Tex. Crim. App. 2012) (citing Almanza v, State, 686 S.W.2d 157, 171) (Tex. 

Crim. App. 1985) (en banc)). But if the “defendant never presents a proposed jury 

instruction (or fails to object to lack of one), any potential error in the charge is reviewed 

only for ‘egregious harm’ under Almanza.” Oursbourn v. State, 259 S.W.3d 159, 174 

(Tex. Crim. App. 2008). The failure to preserve jury-charge error is not a bar to appellate 

review, but rather it establishes the degree of harm necessary to the reversal. Warner

v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). 

If the “error is preserved with a timely objection. . .then the jury-charge error 

requires reversal if the appellant suffered some harm as a result of the error.” Sanchez, 

376 S.W.3d at 775 (citing Almanza, 686 S.W.2d at 171). When an “appellant d[oes] not 

object to the charge, the error does not result in reversal ‘unless it was so egregious and 

created such harm that appellant was denied a fair trial.’” Warner, 245 S.W.3d at 461 

(citing Almanza, 686 S.W.2d at 171). “Egregious harm deprives appellant of a fair and 

impartial trial.” Trejo v. State, 313 S.W.3d 870, 871 (Tex. App.—Houston [14th Dist.], 

pet. ref’d.) (citing Almanza, 686 S.W.2d at 171). “Errors that result in egregious harm 

are those that affect the ‘very basis of the case,’ ‘deprive the defendant of a valuable 

right,’ or ‘vitally affect a defensive theory.’” Warner, 245 S.W.3d at 461–62 (citing Hutch
12

v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (en banc)). 

B. Applicable Law and Discussion 

1. Alternate Theories of Capital Murder

The “Code of Criminal Procedure provides that the trial court ‘must deliver to the 

jury. . . .a written charge distinctly setting forth the law applicable to the case.’” Sanchez, 

376 S.W.3d at 773; see TEX. CODE CRIM. PROC. art. 36.14 (West, Westlaw through 2015 

R.S.). The Texas Court of Criminal Appeals has held “that alternate pleading of the 

differing methods of committing one offense may be charged in one indictment.” 

Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (en banc). “Although the 

indictment may allege the differing methods of committing an offense in the conjunctive, 

it is proper for the jury to be charged in the disjunctive.” Id. “It is appropriate where the 

alternate theories of committing the same offense are submitted to the jury in the 

disjunctive for the jury to return a general verdict if the evidence is sufficient to support a 

finding under any of the theories submitted.” Id. The jury does not necessarily have to 

agree on the manner or means of the murder, but they need “only unanimously agree 

that [the] appellant caused the death of the complainant.” Sanchez, 376 S.W.3d at 774. 

The State alleged four alternative theories in the indictment to prove that Rodriguez 

committed the offense of capital murder. Specifically the State alleged that Rodriguez 

intentionally caused the death of Villarreal by killing Villarreal with a handgun while: (1) 

in the course of committing or attempting to commit the offense of kidnapping of Villarreal; 

(2) in the course of committing or attempting to commit the offense of robbery of Villarreal; 

(3) in the course of committing or attempting to commit the offense of obstruction or 

retaliation against Villarreal; or (4) for remuneration or the promise of remuneration from 
13

Rene Garcia, to-wit: U.S. and/or foreign currency. See TEX. PENAL CODE ANN. § 19.03. 

Although Rodriguez argues the trial court denied his fundamental right to a unanimous 

jury by submitting the four alternative ways to commit capital murder in one paragraph in 

the jury charge, this was not error. Id. In the jury charge, under section 9.1, the trial 

court listed out the four alternative ways Rodriguez could have committed capital murder 

breaking each element into its own line. Under section 9.3 of the jury charge, the trial 

court reiterated the four ways Rodriguez could have committed capital murder by placing 

each alternative in its own paragraph. Nowhere in the jury charge does the trial court 

place all four alternatives into one paragraph as Rodriguez alleges. However, even if it 

did, it would not have constituted error. 

The jury was properly charged in the disjunctive with regards to the underlying 

aggravating felonies necessary to prove capital murder. Here, as in Sanchez, “because 

the indictment permitted a conviction under four alternatives for murder, the State could 

obtain a conviction if any of the alternatives were proven.” Sanchez, 376 S.W.3d at 774. 

We find Kitchens and its progeny to be good law and continue to follow it. See Kitchens, 

823 S.W.2d at 258. Here, the jury charge was proper and the State was allowed to prove 

capital murder under any of the four theories alleged in the indictment. We overrule 

Rodriguez’s second issue.

2. Specific Voluntariness of a Confession 

 A defendant under Texas law: 

may claim that his statement was not freely or voluntarily made and thus 

may not be used as evidence against him under several theories: (1) Article 

38.22, §6–general voluntariness; (2) Miranda v. Arizona as expanded in 

Article 38.22, §§ 2 and 3 (the Texas confession statute); or (3) the Due 

Process Clause.
14

Oursbourn, 259 S.W.3d at 169. The “first step in deciding upon an appropriate jury 

instruction is identifying the theory of involuntariness.” Id. A confession can be 

“involuntary under the Due Process Clause only when there is police overreaching.” Id. 

“Even if a confession is not the product of a meaningful choice (for example, when made 

in response to hallucinations or to a private person’s threat), it is nonetheless ‘voluntary’ 

within the meaning of the Due Process Clause absent some coercive police activity.” Id. 

at 170. “Coercive government misconduct renders a confession involuntary if the 

defendant’s ‘will has been overborne and his capacity for self-determination critically 

impaired.’” Contreras v. State, 312 S.W.3d 566, 574 (Tex. Crim. App. 2010) (quoting

Schneckloth v. Bustamante, 412 U.S. 218, 225–26, 93 S.Ct. 2041 (1973)). “In Texas, if 

there is a disputed fact issue about whether this type of coercive practice was employed–

by either an officer or a private citizen5–to wring a confession out of a suspect against his 

will, a specific exclusionary-rule instruction under Article 38.23 is appropriate.” 

Oursbourn, 259 S.W.3d at 178. 

“Under Texas statutory law, there are three types of instructions that relate to the 

taking of confessions: (1) a ‘general’ Article 38.22, § 6 voluntariness instruction; (2) a 

‘general’ Article 38.22, § 7 warnings instruction (involving warnings given under § 2 and 

§ 3); and (3) a ‘specific’ Article 38.23(a) exclusionary-rule instruction.” Oursbourn, 259 

S.W.3d at 173. “The Section 6 ‘general’ instruction asks the jury: ‘Do you believe, 

beyond a reasonable doubt, that the defendant’s statement was voluntarily made? If it 

 

5 Oursbourn references Miles v. State when discussing the role played by a private citizen. See 

Miles v. State, 241 S.W.3d 28, 31 (Tex. Crim. App. 2007). However, Miles deals primarily with privatecitizen arrests, not confessions, and further held that violations of the law committed by private citizens in 

order to effectuate an arrest do not necessarily implicate Article 38.23. See id. 
15

was not, do not consider the defendant’s confession.’” Id. “The Article 38.23(a) 

‘specific’ instruction is fact-based: For example, ‘Do you believe that Officer Obie held 

a gun to the defendant’s head to extract his statement? If so, do not consider the 

defendant’s confession.’” Id. at 173–74. 

Here, the trial court charged the jury with a general instruction under article 38.22, 

§ 6 relating to voluntariness, but Rodriguez alleges the trial court should have also given 

him an instruction under article 38.23 regarding specific voluntariness. See TEX. CODE 

CRIM. PROC. art. 38.22, 38.23. The State argues that the appropriate instruction was 

given in the jury charge because Rodriguez did not raise a factual issue entitling him to 

an article 38.23 instruction. See id. 

Article 38.22, section 6 is “‘the law applicable’ to any case in which a ‘question’ is 

raised and litigated as to the ‘general’ voluntariness of a statement of an accused.” 

Oursbourn, 259 S.W.3d at 180 (internal quotations omitted). “The trial judge must then 

(1) make an independent determination that the statement was made under voluntary 

conditions; and then (2) instruct the jurors that they shall not consider the statement for 

any purpose unless they believe, beyond a reasonable doubt, that the statement was 

made voluntarily.” Id at 180–81. Article 38.23 is “‘the law applicable’ to any case in 

which a specific, disputed issue of fact is raised concerning the constitutional 

voluntariness of the making of the defendant’s statement.” Id. at 181. “These are 

statutorily mandated instructions and the trial judge must include them in the jury 

instructions when the voluntariness of a defendant’s statement is at issue.” Id.

 In order to be entitled to an article 38.23 instruction,

a defendant must establish three foundation requirements. . . .(1) the 
16

evidence heard by the jury must raise an issue of fact; (2) the evidence on 

that fact must be affirmatively contested; and (3) the contested factual issue 

must be material to the lawfulness of the challenged conduct in obtaining 

the statement claimed to be involuntary.

Oursbourn, 259 S.W.3d at 177. “The defendant must offer evidence that, if credited, 

would create a reasonable doubt as to a specific factual matter essential to the 

voluntariness of the statement.” Id.; see Madden v. State, 242 S.W.3d 504, 513 (Tex. 

Crim. App. 2007). “A cross-examiner’s questions do not create a conflict in the 

evidence, although the witnesses’ answers to those questions might” Id. Disputed 

evidence must be brought forth by an appropriate witness. See Oursbourn, 259 S.W.3d 

at 177. “The cross-examiner cannot create a factual dispute for purposes of an Article 

38.23(a) instruction merely by his questions. It is only the answers that are evidence 

and may create a dispute.” Madden, 242 S.W.3d at 514. 

Although Rodriguez’s trial counsel asked questions of witnesses regarding the 

alleged abuse of the Mexican authorities, the record does not contain evidence that the 

Cameron County Sheriff’s Office was involved in any alleged abuse. Captain Garza and 

Lieutenant Diaz both testified that they were not aware of any abuse of Rodriguez during 

the time he agreed to speak with them and the exchange on cross-examination between 

the two officers and Rodriguez’s trial counsel was not enough to raise a genuine issue of 

fact sufficient to warrant the article 38.23 instruction. See TEX. CODE CRIM. PROC. art. 

38.23. However, the consulate notes and testimony of Rafael Solis did elicit information 

regarding the alleged abuse by Mexican authorities. But none of the information 

contained in the notes or given by Solis implicated the U.S. authorities in any alleged 

abuse of Rodriguez. Additionally, based on the decision in Miles, even if we would
17

consider the Mexican authorities as “private citizens,” there is no testimony that the 

alleged abuse occurred in regards to any offenses in the United States. Solis testified 

that the Mexican authorities wanted information from Rodriguez regarding his crimes in 

Mexico, not the United States. Even assuming the consulate notes and testimony raised 

the fact issue, this information would not be material to the challenged conduct Rodriguez 

is seeking to receive an Article 38.23 instruction on, his confession. See id. 

The testimony from the Cameron County Sheriff’s officials do not raise any kind of 

relationship between the U.S. and Mexican authorities. Since there does not appear to 

be any causal connection between the two agencies, and the Cameron County Sheriff’s 

deputies testified they had no knowledge of any alleged abuse prior to taking Rodriguez’s 

statement, we do not find that a factual dispute was raised that entitled Rodriguez to an 

Article 38.23 instruction. See id. We hold that sufficient evidence was brought forth for 

a general voluntariness instruction under article 38.22, section 6, and, as a result, the trial 

court gave the proper instruction. See TEX. CODE CRIM. PROC. art. 38.22. Because we 

find no error in the jury charge instructions, there is no need to conduct a harm analysis. 

See Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (en banc). We overrule 

Rodriguez’s third issue. 

IV. EVIDENCE PROPERLY ADMITTED

By his fourth issue and fifth issue, which we will address together, Rodriguez 

complains the trial court committed error by allowing hearsay statements and certain 

extraneous offenses to be admitted improperly into evidence during the guilt-innocence 

phase of the trial. 
18

A. Standard of Review

We review a trial court’s ruling to admit evidence for an abuse of discretion. 

Taylor v. State, 268 S.W.3d 571, 578–79 (Tex. Crim. App. 2008). However, in order to 

reverse a trial court’s determination, we must find the trial court’s ruling lies outside the 

zone of reasonable disagreement. Id. In applying an abuse of discretion standard, we 

will not disturb the trial court’s evidentiary ruling if it is correct under any applicable theory 

of law. De la Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). Error in the 

admission of evidence is non-constitutional error and is subject to a harm analysis under 

Rule 44.2(b) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 44.2(b) 

(West, Westlaw through 2015 R.S.); Taylor, 286 S.W.3d at 592. “We have construed 

this to mean that an error is only reversible when it has a substantial and injurious effect 

or influence in determining the jury’s verdict.” Id. “We should not overturn the 

conviction if we have fair assurance from an examination of the record as a whole that 

the error did not influence the jury, or had but a slight effect.” Id. 

B. Applicable Law and Discussion

1. Hearsay Testimony 

Hearsay is inadmissible unless it falls under a hearsay exception identified in the 

Rules of Evidence or is allowed by other rules prescribed by statute. Sanchez v. State, 

354 S.W.3d 476, 484 (Tex. Crim. App. 2011); see TEX. R. EVID. 803, 804 (West, Westlaw 

through 2015 R.S.). “Once the opponent of hearsay evidence makes the proper 

objection, it becomes the burden of the proponent of the evidence to establish that an 

exception applies that would make the evidence admissible in spite of its hearsay 

character.” Taylor, 268 S.W.3d at 578–79. The exceptions argued by the State are
19

found under Texas Rules of Evidence 803(1) and 804. See TEX. R. EVID. 803(1), 804. 

Rule 803(1) describes a present sense impression and Rule 804 addresses forfeiture by 

wrongdoing. Id. 

a. Rule 803(1)

Rodriguez first complains that the trial court committed error by allowing witness 

Pamela Cavazos to testify regarding hearsay statements from Connie Gonzalez. 6 

Cavazos testified about a conversation she had with Gonzalez, in which Gonzalez told 

Cavazos she was going to Mexico with Rodriguez shortly after Villarreal’s murder. 

Rodriguez’s counsel objected to this testimony on hearsay grounds. In response to 

Rodriguez’s objection, the State cited the present sense impression exception to the 

hearsay rule, and the trial court overruled Rodriguez’s objection. Without addressing the 

merits of Rodriguez’s hearsay objection, we note that Rodriguez’s trial counsel crossexamined Connie Gonzalez inter alia about the complained-of hearsay testimony 

regarding Gonzalez’s conversation with Cavazos. Gonzalez testified that she left with 

Rodriguez to Mexico. The rule in Texas is “that overruling an objection to evidence will 

not result in reversal when other such evidence was received without objection, either 

before or after the complained-of ruling.” Leday v. State, 983 S.W.2d 713, 718 (Tex. 

Crim. App. 1998) (en banc.). Therefore, even if we were to hold that the complained-of 

evidence was erroneously admitted hearsay evidence, we find such an error harmless in 

light of Rodriguez’s cross-examination of Cavazos about the complained-of testimony, as 

well as the additional evidence throughout the trial that showed Rodriguez was later 

 

6

 Connie Gonzalez was Rodriguez’s girlfriend at the time Villarreal’s murder was committed.
20

located in Mexico. 

b. Rule 804

Rodriguez also argues that the trial court reversibly erred by admitting a written 

statement given by Villarreal prior to his death regarding a separate case. Villarreal had 

been a witness to a prior murder and had given a statement to the investigating agency 

regarding that crime. The State introduced that statement into evidence through an 

investigator from the Harlingen Police Department involved in that case. Rodriguez 

objected stating it violated the confrontation clause and the State responded by saying 

the statement was not being offered for the truth of the matter asserted in this case and 

the defendant had committed forfeiture by wrongdoing. See Crawford v. Washington, 

541 U.S. 36, 62 (2004). The trial court overruled the objection and allowed the statement 

to come in. However, both sides agreed that there should be a limiting instruction given 

to the jury. 

“The Constitution gives the accused the right to a trial at which he should be 

confronted with the witnesses against him; but if a witness is absent by his own wrongful 

procurement, he cannot complain if competent evidence is admitted to supply the place 

of that which he has kept away.” Gonzalez v. State, 195 S.W.3d 114, 117 (Tex. Crim. 

App. 2006); see Crawford, 541 U.S. at 62. The forfeiture by wrongdoing “doctrine was 

added to Rule 804 [of the Federal Rules of Evidence] to clarify that a party forfeits the 

right to object, on hearsay grounds, to the admission of a declarant’s prior statement when 

the party’s deliberate wrongdoing procured the unavailability of the declarant as a 

witness.” Gonzalez, 195 S.W.3d at 119. “Courts have agreed that forfeiture requires 

(1) the declarant’s unavailability, (2) as a result of the defendant’s act of misconduct.” Id. 
21

at 120. The Texas Court of Criminal Appeals has held that “the doctrine of forfeiture by 

wrongdoing may apply even though the act with which the accused is charged is the same 

as the one by which he allegedly rendered the witness unavailable.” Id. at 125.

Here, the State had charged Rodriguez with capital murder because he killed 

Villarreal to prevent him from testifying in another murder trial. In order to link Villarreal 

as a crucial eyewitness in the other murder case, Villarreal’s statement was necessary to 

be brought before the jury. The introduction of Villarreal’s statement was necessary to 

provide that link between the two cases. Although Villarreal’s statement did not provide 

any information regarding his murder, it helped prove one of the alternate theories of 

capital murder under which Rodriguez was charged. Rodriguez was not able to confront 

and cross examine Villarreal due to his own misconduct: i.e. killing Villarreal. Because 

Villarreal was unavailable due to Rodriguez’s misconduct, the introduction of this 

statement was allowable under the doctrine of forfeiture by wrongdoing. The trial court 

was correct to allow the statements by Villarreal into evidence. We overrule Rodriguez’s 

fourth issue. 

2. Extraneous Offenses

Rodriguez argues that the court should not have allowed testimony regarding 

extraneous offenses to come in as it violated Rule 403 and Rule 404(b) of the Texas 

Rules of Evidence. see TEX. R. EVID. 403, 404(b) (West, Westlaw through 2015 R.S). 

Specifically he complains of testimony from three witnesses: Ismael Luna, Richard 

Zavala, and Rafael Solis. 

a. Rule 404(b)

“When a party attempts to adduce evidence of ‘other crimes, wrongs, or acts,’ in 
22

order to preserve error on appeal, the opponent of the evidence must object under rule 

404(b) in a timely fashion. Almaguer v. State, No. 13-12-00605-CR, ___S.W.3d___, 

2014 WL 5088386, at *11 (Tex. App.—Corpus Christi 2014, no pet.) (citing Montgomery 

v. State, 810 SW.2d 372, 387 (Tex. Crim. App. 1990)); see TEX. R. EVID. 404(b). “Once 

a complaint is lodged, it is incumbent upon the proponent of the evidence to satisfy the 

trial court that the ‘other crime, wrong, or act’ has relevance apart from its tendency ‘to 

prove character of a person in order to show that he acted in conformity therewith.’” 

Almaguer, 2014 WL 5088386, at *11 (citing TEX. R. EVID. 404(b)). If the trial court finds 

there is no use other than to show character conformity, then the evidence is inadmissible. 

See id. “However, the proponent of the evidence may persuade the trial court that the 

‘other crime, wrong, or act’ has relevance apart from character conformity” in order for 

such evidence to be deemed admissible. Id.; see TEX. R. EVID. 404(b).

“Merely introducing evidence for a purpose other than character conformity, or any 

of the other enumerated purposes in rule 404(b), does not, by itself, make that evidence 

admissible.” Webb v. State, 36 S.W.3d 164, 179 (Tex. App—Houston [14th Dist.] 2000, 

pet. ref’d)); see TEX. R. EVID. 404(b). The “extraneous offense must also be relevant to 

a ‘fact of consequence’ in the case.” Webb, 36 S.W.3d at 179 (citing Rankin v. State, 

974 S.W.2d 707, 709 (Tex. Crim. App. 1996)). 

b. Rule 403

“Once an objection is made under rule 403, the trial court is called upon to weight 

probativeness of the evidence against its potential for ‘unfair’ prejudice–that is, ‘its 

tendency to suggest decision on an improper basis, commonly, though not necessarily, 

an emotional one.’” Almaguer, 2014 WL 5088386 at *11; see TEX. R. EVID. 403; 
23

Montgomery, 810 S.W.2d at 389. “Rule 403 imposes a duty upon the trial court to inquire 

from the opponent about the purported prejudice from the admission of evidence.” 

Almaguer, 2014 WL 5088386 at *11. “Once rule 403 is invoked, however, the trial court 

must engage in a balancing test.” Id. “The language of rule 403 that evidence ‘may be 

excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice,’ simply means that trial courts should favor admission in close cases, in 

keeping with the presumption of admissibility of relevant evidence.” Id.; see TEX. R.

EVID. 403. “Unfair prejudice does not arise from the mere fact that evidence injures a 

party’s case. Virtually all evidence that a party offers will be prejudicial to the opponent’s 

case, or the party would not offer it.” Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. 

App. 2007). 

1. Ismael Luna

Luna testified about two instances which Rodriguez complains should not have 

been allowed before the jury. The first instance was when Luna saw Rodriguez with a 

gun. Luna testified he lived near Villarreal and shortly before Villarreal’s body was 

discovered, Villarreal came to Luna’s house with Rodriguez and another man. Villarreal 

told Luna as they walked away from Rodriguez and the other man that “they wanted to 

kill him” and Villarreal seemed scared. Luna also saw a black handgun laying on the 

seat near Rodriguez that same day. In a hearing outside the presence of the jury, 

Rodriguez’s trial counsel objected to this line of testimony. The State argued it was 

allowable under rule 404(b) because it showed Rodriguez had a plan, knowledge, motive, 

and opportunity to kill Villarreal. See TEX. R. EVID. 404(b). Since Villarreal was 

murdered within days of the incident Luna recounted, the evidence was important to show 
24

a plan or knowledge by Rodriguez, and Villarreal’s statements were illustrative of this 

plan. The trial court overruled Rodriguez’s objection and allowed the testimony to be 

heard by the jury. We find the trial court’s ruling was proper and allowable under Rule 

404(b). See id. 

Rodriguez also argues that Luna was allowed to testify that Rodriguez told him to 

assault Richard Zavala, an individual who knew both Villarreal and Rodriguez. Luna’s 

testimony concerning this request was confusing and he eventually denied that Rodriguez 

had told him to assault Zavala. The trial court excused the jury in order to delve further 

into the matter. Rodriguez’s counsel objected to the jury hearing this information 

because it was a violation of the motion in limine ruled on pre-trial. The trial court agreed 

the reference was a violation of the motion in limine and gave the jury an instruction to 

disregard when the returned to the courtroom. Although the reference to the alleged 

assault request was improper, we do not find that it was a violation of Rodriguez’s 

substantial rights or was enough to improperly influence the jury. See Taylor, 286 

S.W3d at 592. 

2. Richard Zavala

Rodriguez next complains of the testimony of Richard Zavala. Zavala knew both 

Rodriguez and Villarreal. Zavala testified that he received multiple calls from Rodriguez 

in the days leading up to and following Villarreal’s murder. Zavala recalled that in late 

February 2005, Rodriguez called him and told him to get Villarreal and “take care of 

business,” which Zavala understood to mean kill Villarreal. Shortly after Villarreal went 

missing, Zavala received another call from Rodriguez where Zavala was told they “were 

going to kill him the same way they killed that guy [he believed referring to Villarreal], and 
25

he would come out missing and be found by a man fishing.” Zavala stated he received 

that call before Villarreal’s body had been found in the canal. Rodriguez did not object 

to any of Zavala’s testimony, either in the presence or outside the presence of the jury 

and thereby waived his complaint against this witness on appeal. See TEX. R. APP. P. 

33.1. 

3. Rafael Solis

Rafael Solis testified about statements Rodriguez made to him while they both 

were in Mexico. Solis, at the time of trial, was a federal inmate who Rodriguez had lived 

with in Mexico. Solis testified that he visited Rodriguez at a Mexican jail and Rodriguez 

told him the Mexican police had held a paper bag over his head, trying to get him to give 

them information. At a hearing outside the presence of the jury, Rodriguez objected to 

allowing Solis to testify claiming that allowing Solis’s testimony would introduce evidence 

of his offenses committed in Mexico. The State argued the information was relevant 

because Rodriguez opened the door to the voluntariness of his statement and treatment 

by the Mexican officers through his cross-examination of Solis. The trial court overruled 

Rodriguez’s objection. Solis testified that Rodriguez had told him the Mexican 

authorities wanted the name of the person Rodriguez was working with in Mexico and 

that he passed out with the bag over his head. We find the testimony involving 

Rodriguez’s offenses committed in Mexico was minimal and the trial court did not err in 

allowing the testimony to be heard by the jury, as it was proper rebuttal questioning. We 

overrule Rodriguez’s fifth issue.
26

V. CONCLUSION

We affirm the judgment of the trial court. 

 

GINA M. BENAVIDES,

Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed the

22nd day of October, 2015.