## NUMBER 13 -23-00275- CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

RUBEN A NTHONY CANO

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

ON APPEAL FROM THE 218TH DISTRICT COURT

OF KARNES COUNTY, TEXAS



## MEMORANDUM OPINION

Before Justices Benavides, Tijerina, and Silva

Memorandum Opinion by Justice Silva

A jury found appellant Ruben Anthony Cano guilty of two counts of aggravated

assault with a deadly weapon, second

- degree felon ies enhanced by Cano ’s habitual2 felony offender status. 1 See T EX

. P ENAL C ODE A NN

. §§ 12.42(d), 22.0 2(a )(2). The jury

sentenced Cano to sixty years ’ imprisonment in both counts, ordered to run concurrent ly

.

By what we construe to be three issues

, Cano argues the trial court abused its discretion

by overruling his relevancy and hearsay objections and denying his request for mistrial

after the State “ fail[ed] to provide the defense evidence. ” We affirm.

I. B ACKGROUND

On December 6, 2021, Karnes City Police Department Sergeant Mike Ochoa was

dispatched to a residence. He arrived to find Becky Soliz badly beaten. Soliz was airlifted

to a nearby hospital and treated for fractured ribs; stab wounds to her left flank, left and

right thigh; and “ serious bruis[ing] ” to her “[h] ead, face, neck, chest, abdomen, upper, mid

and lower back, right elbow, right forearm, right wrist, right hand, right thigh [,] right knee [,]

. . . left arm, [l] eft elbow, left forearm, left wrist, left hand, left thigh [,] and left knee. ” Soliz

told officers Cano had beaten her with a bat and stabbed her multiple times with a knife.

Cano was indicted on two counts of aggravated assault with a deadly weapon

.

At t rial, Soliz testified that on December 5, 2021, she was awoken in the early

evening hours by Cano, accusing her of infidelity. S he and Cano had been homeless,

living out of a van at the time

. As the argument escalated

, Cano pulled out a metal bat

and began hitting her. Cano struck her several times before Soliz caught the bat mid

swing and pushed it back

, hitting Cano in the head. Cano eventually taped Soliz’s arms

1 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio

pursuant to a docket

- equalization order issued by the Supreme Court of Texas. See T EX

. G OV ’ T C ODE A NN

. §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the

authority to transfer cases from one court of appeals to another at any time that there is “ good cause ” for

the transfer). Because this is a transfer case, we apply the precedent of the San Antonio Court of Appeals

to the extent it differs from our own. See T EX

. R. A PP

. P. 41.3.3 to her back

. Cano then assaulted her using “ needle

- nose pliers ” and a small knife. Soliz

testified that Cano told her that he intended to “ make [her] bleed to death. ” According to

Soliz, Cano removed the tape in the early morning hours of December 6th before forcing

Soliz to perform oral sex on him. Following Soliz ’ s multiple pleas for water , Cano stopped

hurting Soliz

. As soon as Cano exited the vehicle, Soliz ran to a neighbor ’ s residence,

where she called 9

- 1

- 1. Cano returned to the area carrying two cups of water and was

arrested shortly thereafter.

In a single statement, Soliz testified that Cano had also been physically abusive

prior to December 5, 2021 : “Well, I started getting accused of cheating all the time and all

this and all that; and I just started getting hit and all that, too, so.” Cano objected , and

although his objection was overruled, Soliz did not further expound on this testimony

. 2

Soliz ’ s medical records and images of Soliz ’ s injuries were admitted at trial, in

addition to the responding officer s ’ body camera recordings.

The jury returned a guilty verdict and sentence d Cano to sixty years on both

counts

. This appeal followed.

2 Soliz’s statements regarding the forced oral sex incident were similarly limited :

Q. And what did he want you to do to him?

A. He wanted me to perform oral sex on him.

Q. And did you do it?

A. Yes, ma ’ am.

Q. Why did you give him oral sex? You know, the assaults w ent on and

— why did you

perform oral sex on him?

A. Maybe he would stop.4 II. E XTRANEOUS E VIDENCE

By his first issue, Cano argues the trial court abused its discretion in overruling his

Rule 403 objection and admitting extraneous offense evidence ; namely, So liz ’s testimony

concerning Cano’s prior physical violence in the relationship and Cano ’s “ demand [] that

the alleged victim perform oral sex on him ” during the commission of the indicted offense.

See T EX

. R. E VID

. 403.

A. Standard of Review and Applicable Law

Texas Rule of Evidence 403 “ excludes otherwise relevant evidence when the costs

of admission outweigh its utility. ” Hart v. State

, No. PD

- 0677

- 22, 2024 WL 2034571, at *5

(Tex. Crim. App. May 8, 2024). In accordance with the rule, “ [t] he [trial] court may exclude

relevant evidence if its probative value is substantially outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues, misleading the jury, undue

delay, or needlessly presenting cumulative evidence. ” T EX

. R. E VID

. 403. We utilize four

factors in our determination of whether evidence is admissible under Rule 403: “ (1) the

strength of the evidence ’s probative value, (2) the potential for the evidence to ‘ impress

the jury in some irrational but nevertheless indelible way, ’ (3) [t] he amount of time required

at trial to develop the evidence, and (4) the proponent ’s need for the evidence. ” Hart

,

2024 WL 2034571, at *5 (quoting Montgomery v. State

, 810 S.W.2d 372, 390 (Tex. Crim.

App. 1990) ). In any given case, “ these factors may well blend together in practice. ”

Gigliobianco v. State

, 210 S.W.3d 637, 641

– 42 (Tex. Crim. App. 2006). Moreover, the

balancing of these factors “ is always slanted toward admission, not exclusion, of

otherwise relevant evidence. ” De La Paz v. State

, 279 S.W.3d 336, 343 (Tex. Crim. App.5 2009) ; see Gittens v. State

, 560 S.W.3d 725, 732 (Tex. App.

— San Antonio 2018, pet.

ref ’ d) (“ Rule 403 carries with it a presumption that relevant evidence will be more

probative than prejudicial. ” (quoting Martinez v. State

, 155 S.W.3d 491, 497 (Tex. App.

—

San Antonio 2004, no pet.))). We review a decision to admit or exclude evidence for an

abuse of discretion. Montgomery

, 810 S.W.2d at 391 ; Beltran v. State

, 517 S.W.3d 243,

247 (Tex. App.

— San Antonio 2017, no pet.).

B. Analysis

1. Probative Value and State ’s Need

The first and last step s in the Rule 403 balancing test require that we identify the

probative value and the State’s need for the evidence, respectively. See Hart

, 2024 WL

2034571, at *6 –7

. Evidence is probative if it tends to make a fact of consequence more

or less likely. T EX

. R. E VID

. 401(a). With respect to these factors

, Cano altogether disputes

that he assaulted Soliz in any manner, and apart from Soliz, there were no witnesses to

the assault. Not only does the extraneous

- offense evidence that Cano had previously

assaulted Soliz and that he forced her to perform oral sex contextualize the relationship

between Cano and Soliz, it serves to rebut the defensive theory that Soliz fabricated the

incident and tends to make the fact of consequence

— that is, Cano ’s ability to harm

Soliz

— more likely

. See Hart

, 2024 WL 2034571, at *6 –7; see also Ervin v. State

, No. 08

-

15

- 00025

- CR, 2017 WL 3614237, at *9 (Tex. App.

— El Paso Aug. 23, 2017, pet. ref ’ d)

(mem. op., not designated for publication) (“ [T]he prior sexual assault was part of the very

fabric of the story of Appellant ’s relationship with his victim, which was one of the main6 issues in the case, making it a highly relevant and necessary part of the State ’s case.” ).

Th us, these factors weigh in favor of admission.

2. Time Needed to Develop the Evidence

We next examine “ how much trial time was dedicated to the development of the

evidence such that its introduction caused undue delay. ” Hart

, 2024 WL 2034571, at *7

(citing Montgomery

, 810 S.W.2d at 389

– 90). “ [T] he concern is the extent to which the jury

is distracted from considering the charged offense .” Id. Therefore, “ the time needed to

develop the character evidence necessarily includes any testimony introduced regarding

the evidence

, including cross- examination, redirect examination, and any rebuttal offered

by the defense in response to the evidence .” Id.

The time needed to develop Soliz ’s testimony concerning the past physical assault

and sexual assault amounted to less than one page of the record . Whereas, the entirety

of her testimony

, including cross

- examination and re

- direct examination, spanned

approximately forty pages of the record. This extraneous offense evidence was not

elicited from any other witnesses, and Soliz ’s objected

- to testimony was only referenced

in two lines of the State ’s closing arguments. See Inthalangsy v. State

, 634 S.W.3d 749,

759 (Tex. Crim. App. 2021) ; see also Garcia v. State

, No. 04

- 22

- 00057

- CR, 2023 WL

8440526, at *4 (Tex. App.

— San Antonio Dec. 6, 2023, no pet.) (mem. op., not designated

for publication). Thus

, this factor weighs in favor of admission

.

3. Prejudicial Dangers

Regarding the third factor

, the phrase “ unfair prejudice ” in Rule 403 “ refers to a

tendency to suggest decision on an improper basis, commonly, though not necessarily,7 an emotional one. ” Gigliobianco

, 210 S.W.3d at 641 (citing State v. Mechler

, 153 S.W.3d

435, 440 (Tex. Crim. App. 2005)). We acknowledge that extraneous

- offense evidence of

sexual assault may be inflammatory and consequently prejudicial. See Pawlak v. State

,

420 S.W.3d 807, 809 (Tex. Crim. App. 2013) (“ We have held that sexually related bad

acts and misconduct involving children are inherently inflammatory. ” (emphasis added) );

see also Ervin

, 2017 WL 3614237, at *8 (“ [W]e recognize that evidence of a prior sexual

assault may carry with it an emotional charge. ”). However, Rule 403 does not call for the

exclusion of all prejudicial evidence; rather, it only allows exclusion of unfairly prejudicial

evidence. Proo v. State

, 587 S.W.3d 789, 814 (Tex. App.

— San Antonio 2019, pet. ref ’ d);

see T EX

. R. E VID

. 403

.

Here, Soliz ’s testimony concerning their abusive relationship history and Cano

forc ing her to perform oral sex was not unduly salacious or inflammatory and arguably

“ no more serious than the allegations forming the basis [of] the indictment. ” See

Robisheaux v. State

, 483 S.W.3d 205, 220 (Tex. App.

— Austin 2016, pet. ref ’ d).

Moreover, Cano “ does not identify any particular facts ” about Soliz ’s testimony that make

it “ uniquely or unfairly prejudicial. ” See Alvarez v. State

, 491 S.W.3d 362, 371 (Tex.

App.

— Houston [1st Dist.] 2016, pet. ref ’ d). Therefore, although Soliz ’s testimony may

have been prejudicial, Cano has not demonstrated that it was unfairly prejudicial. See

Pawlak

, 420 S.W.3d at 811 (“ [T]he plain language of Rule 403 does not allow a trial court

to exclude otherwise relevant evidence when that evidence is merely prejudicial. ”). This

factor weighs in favor of admission.8 4. Weighing the Factors

Based on our review of the relevant factors, we conclude that the trial court did not

abuse its discretion in determining that the probative value of the extraneous

- offense

evidence was not substantially outweighed by its prejudicial effect. See Montgomery

, 810

S.W.2d at 391

. We overrule Cano ’s first issue.

I II . H EARSAY

Cano next asserts that the trial court abused its discretion by denying his hearsay

objection concerning the same evidence discussed sup ra

. See T EX

. R. E VID

. 80 2.

Preservation of error is a systemic requirement on appeal. Sandoval v. State

, 665

S.W.3d 496, 546 n.192 (Tex. Crim. App. 2022), cert. denied

, No. 23

- 5618, 2024 WL

2116263 (U.S. May 13, 2024). A reviewing court should not address the merits of an issue

that has not been preserved for appeal. Id. Generally, to preserve error for appellate

review, the record must show that an objection was made to the trial court, the grounds

for relief were made “ with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context, ” and the trial court

ruled upon the objection. T EX

. R. A PP

. P. 33.1(a); see Gibson v. State

, 541 S.W.3d 164,

166 (Tex. Crim. App. 2017). “ Magic words are not required

, but the defendant must at

least ‘ let the trial judge know what he wants [and] why he thinks himself entitled to it, ’ and

he must ‘ do so clearly enough for the judge to understand him at a time when the trial

court is in a proper position to do something about it.’” Hall v. State

, 663 S.W.3d 15, 38

(Tex. Crim. App. 2021) (quoting Lankston v. State

, 827 S.W.2d 907, 909 (Tex. Crim. App.

1992)).9 We cannot find and Cano does not cite to where in the record he objected to the

admission of evidence concerning his relationship with Soliz

, or his demand that Soliz

perform oral sex on December 6, 2021

, based on hearsay or the applicable rules

. See

generally T EX

. R. E VID

. 802. Thus, this issue has not been preserved for our review. See

T EX

. R. A PP

. P. 33.1(a)

. We overrule Cano ’s second issue.

I V. M ISTRIAL

By his third issue, Cano argues “t he trial court abused its discretion by not granting

the mistrial ” after the State “ fail[ed] to provide the defense evidence .”

To preserve error for appellate review, specifically a motion for mistrial, the record

must show that the motion was timely and specific. Griggs v. State

, 213 S.W.3d 923, 927

(Tex. Crim. App. 2007); s ee T EX

. R. A PP

. P. 33.1(a); see also Juan v. State

, No. 04

- 15

-

00770

- CR, 2017 WL 2960407, at *8 (Tex. App.

— San Antonio July 12, 2017, pet. ref ’ d)

(mem. op., not designated for publication ). In this case, Cano waited until the conclusion

of the State ’s direct examination of Soliz to move for a mistrial, arguing that Soliz ’s

testimony

— specifically, that she struck Cano with a bat in self

- defense and later Cano

taped her hands behind her back

— deviated from prior statements to law enforcement

,

and such information was absent from the discovery provided to Cano ahead of trial.

Under these circumstances, however, Cano ’s motion for mistrial was untimely

, and he

failed to preserve his complaint for appellate review

. See Griggs

, 213 S.W.3d at 927

(concluding appellant ’s motion for mistrial was untimely and unpreserved for appellate

review and the court of appeals erred in addressing that complaint where appellant ’s

grounds for his motion first became apparent during testimony but he wait ed to move for10 a mistrial un til after the testimony had been concluded) ; see also Davis v. State

, No. 04

-

15

- 00602

- CR, 2016 WL 4537927, at *9 (Tex. App.

— San Antonio Aug. 31, 2016, pet.

ref ’ d) (mem. op., not designated for publication) (same).

We overrule Cano ’s third issue.

V. C ONCLUSION

We affirm the trial court ’s judgment.

CLARISSA SILVA

Justice

Do not publish.

T EX

. R. A PP

. P. 47.2 (b ).

Delivered and filed on the

27th day of June

, 202 4.