Opinion filed June 20, 2024

In The

Eleventh Court of Appeals __________

No. 11-22-00259-CR

__________

RENE MARTINEZ LUNA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CR53338

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

The jury found Appellant, Rene Martinez Luna, guilty of sexual assault and 

occlusion assault. See TEX. PENAL CODE ANN. §§ 22.011(a)(1), 22.01(a)(1) & 

(b)(2)(B) (West Supp. 2023). For the conviction for sexual assault, the jury assessed 

Appellant’s punishment at confinement for seven years in the Institutional Division 

of the Texas Department of Criminal Justice. 
2

For the conviction for occlusion assault, the jury assessed Appellant’s 

punishment at confinement for three years in the Institutional Division of the Texas 

Department of Criminal Justice. After finding that Appellant was eligible for 

community supervision, the jury recommended that his period of confinement be 

suspended, and that Appellant be placed on community supervision. In accordance 

with the jury’s recommendation, the trial court suspended the imposition of the 

three-year sentence and placed Appellant on community supervision for a period of 

seven years.

In five issues, Appellant challenges his convictions and the trial court’s order 

that he pay court-appointed attorney’s fees. We modify and affirm.

Background Facts

Deputy Bradley Gandy of the Midland County Sheriff’s Office responded to 

a call on November 26, 2018, to a report of sexual assault. He made contact with 

the victim, K.M.,

1 who spoke Spanish. Deputy Gandy called Deputy Herubey 

Fernandez to come to the scene and serve as a translator. Deputy Gandy testified 

that K.M. was sitting on a couch and that she had been crying and was continuing to 

cry as she spoke with the deputies. He described her as being “very sad, defeated, 

almost ashamed.” Deputy Gandy testified that K.M. told them that her ex-boyfriend, 

Appellant, had assaulted her. 

Deputy Fernandez described K.M.’s demeanor as “very upset.” He testified 

that he was familiar with the behavior of victims of trauma and that “it seemed very 

obvious that she had been through something.” Deputy Fernandez noted a lack of 

eye contact from K.M., and she seemed to be embarrassed and looked defeated. She 

told the deputies that Appellant sexually assaulted her at a nearby trailer, two days 

after their relationship had ended. K.M. told the deputies that she and Appellant had 

1

As per the reporter’s record, the victim’s initials are “K.M.” However, the indictment and the trial 

court’s charge refer to her as “C.M.” We will refer to her as “K.M.” in this opinion. 
3

been arguing for several days about him staying out late with friends and failing to 

come home. Deputy Fernandez testified that K.M. made the following report to the 

deputies: 

That he had forced her onto the bed. He had covered her mouth and 

her nose to keep her from screaming, which she had difficulty breathing 

because of that, that she had her pants and her undergarments forcibly 

removed, and that she had been sexually assaulted. . . . She said she 

felt that she had been penetrated. She had said, “No, no, no,” had tried 

to kick him off, at one point scratched him in the face and the neck, I 

believe.

Deputy Fernandez also testified that K.M. told them that the couple’s eight-monthold child was on the bed when the assault occurred, and that the assault stopped when 

the child began to cry and Appellant “redirected his attention to trying to calm the 

child.” K.M. was able to retrieve her phone and call a family member that lived 

nearby, at which point Appellant left the trailer. 

Paula Brookings is a sexual assault nurse examiner at Midland Memorial 

Hospital. She examined K.M. on November 26, 2018. Brookings testified that K.M. 

told her (through an interpreter) the following with respect to the reason she was 

there for an examination: 

I had some arguments with my husband. He came home Saturday 

morning at 5:00 o’clock and he left. I tried to go to bed with the baby 

and he came in and started taking off my pants. And I told him no. And 

he pulled off my underwear. I started to yell and he covered my mouth 

and he took off my clothes and penetrated me. And I was kicking and 

screaming and the baby was crying. I was able to get my phone and 

call my dad for help.

Brookings noted multiple abrasions on both of K.M.’s shoulders, and a lab report 

was admitted that showed that Appellant was a contributor of DNA on the swabs 

that Brookings took from K.M. Brookings did not see any physical injuries in her 

examination of K.M.’s genital area, but she further noted that in the majority of 
4

sexual assault examinations, genital injuries are not found. On cross-examination, 

Brookings testified that she did not find evidence of strangulation. 

K.M. testified that she and Appellant had been together for six years, and that 

they were not married. They had two children together, but one child died because 

of sudden infant death syndrome. She testified that she told Appellant that they 

should end their relationship after Appellant had been staying out for several nights. 

She left that day with the baby, but she returned the next day with the child to get 

things for the baby. Appellant was home when she returned, and she testified that 

he was “very sharp” with her. After arguing, Appellant asked K.M. to spend the 

night, which she agreed to do if Appellant agreed to sleep in the other bedroom. 

K.M. testified that she laid down on the bed with her sleeping eight-monthold child in one bedroom with her clothes on. She further testified that Appellant 

then came into that bedroom and that he wanted to sleep with her and the child. 

Appellant asked her to put on her pajamas, but she refused to do so. K.M. testified 

that Appellant forcibly took her pants off, with one of his hands holding her hands 

and his other hand removing her pants. K.M. testified that, when she tried to yell, 

Appellant covered her mouth and nose with his hand so that she could not breathe, 

and that he also put his hands on her throat during the sexual assault. She testified 

that every time she said “no” or yelled, Appellant covered her mouth. 

K.M. testified that “just in a matter of a second that [Appellant] moved away, 

[she] was able to reach [her] cell phone” and call her mother. After the assault 

stopped, K.M. testified that Appellant kissed her stomach and said,

“Congratulations, you are pregnant again.” K.M. stated that Appellant quickly got 

dressed and left the trailer at the same time that her parents arrived. K.M. then got 

dressed and went to her sister’s house to call the police. 

During direct-examination, K.M. testified about threatening text messages 

and communications that Appellant relayed to her. Some of the communications 
5

involved threats against her safety by “the cartel.” Some of the threatening text 

messages came from Appellant’s cell phone. K.M. testified that Appellant made her 

feel like he was protecting her from the cartel. Because of some of the messages 

that she received after the assault, K.M. left Midland in fear. K.M. further testified 

that Appellant manipulated her by threatening to kill himself. She also testified 

about later having sex with Appellant so that he would continue to take care of her. 

Finally, K.M. testified that she had applied for an immigration visa based upon her 

status as being the victim of a crime. 

On cross-examination, K.M. testified that the first threatening messages were 

received after the death of her child and before the alleged sexual assault. She also 

testified that she had an argument with Appellant on November 22, 2018 because he 

had been coming home very late. She also acknowledged coming back to their trailer 

on November 25, 2018 knowing that Appellant was present. 

Appellant testified during the guilt-innocence phase. He acknowledged 

staying out late several nights in a row in November 2018 and that he and K.M. 

argued about it a lot. Appellant testified that he returned home on Sunday, 

November 25, 2018 at 6:00 or 7:00 p.m. after attending the horse races. He stated 

that K.M. was on the sofa folding clothes when he arrived and that their child was 

staying with K.M.’s mother. He testified that K.M. called him to their bedroom and 

that she was lying in bed wearing pajamas. Appellant testified that he and K.M. had 

sex and that he did not restrain her in any way. Afterwards, Appellant testified that 

K.M. believed she observed a “hickey” on his body, which resulted in an argument. 

Appellant stated that the mark was from his work, and that he decided to leave the 

trailer while K.M. was on the phone. 

Appellant testified that he met K.M. on several occasions after the alleged 

sexual assault, estimating that he saw her ten times afterwards. With respect to the 

threatening text messages, Appellant testified on direct-examination that he did not 
6

know who was sending the texts to them. He testified that the first messages were 

sent about their son that died. He also testified that he had two phones, that he never 

threatened, choked, or strangled K.M. and that he did not sexually assault her. 

On cross-examination, Appellant testified that the people that were 

threatening K.M. had his phone and that they were using it to text her from his 

number. He also testified that they were with him and had his phone, but that he did 

not know who they were. He further testified that they threatened him, he did jobs 

for these people by “pick[ing] people up for them” and that he gave them $20,000 at 

one point. 

Analysis

Sufficiency of the Evidence

In Appellant’s first issue, he challenges the sufficiency of the evidence to 

support his convictions. Specifically, he contends that the evidence is insufficient 

because of the absence of injury or trauma noted in the sexual assault examination. 

Appellant also asserts that the evidence was insufficient because K.M.’s testimony 

that the sexual assault was nonconsensual is uncorroborated, noting the continued 

relationship between he and K.M. after the alleged sexual assault and the fact that 

K.M. had used the assault to apply for an immigration visa. 

We review a challenge to the sufficiency of the evidence, regardless of 

whether it is denominated as a legal or factual sufficiency challenge, under the 

standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. 

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 

288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we 

review all of the evidence in the light most favorable to the verdict and determine 

whether any rational trier of fact could have found the essential elements of the 

offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 

S.W.3d 633, 638 (Tex. Crim. App. 2010).
7

When conducting a sufficiency review, we consider all the evidence admitted 

at trial, including evidence that may have been improperly admitted. Winfrey v. 

State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 

772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the sole judge 

of the witnesses’ credibility and the weight their testimony is to be afforded. Brooks, 

323 S.W.3d at 899. This standard accounts for the factfinder’s duty to resolve 

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences 

from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 

778. When the record supports conflicting inferences, we presume that the factfinder 

resolved the conflicts in favor of the verdict, and we defer to that determination. 

Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.

As relevant to Appellant’s convictions, a person commits sexual assault if he 

intentionally or knowingly causes the penetration of the female sexual organ of 

another person by any means without that person’s consent. PENAL § 22.011(a)(1). 

A sexual assault is without the consent of the other person if the actor compels the 

other person to submit or participate by the use of physical force or violence; or he 

compels the other person to submit or participate by threatening to use force or 

violence against the other person, and the other person believes that the actor has the 

present ability to execute the threat. See id. § 22.011(b)(1), (2). A person commits 

the offense of occlusion assault if: (1) he intentionally, knowingly, or recklessly 

causes bodily injury to another; (2) the victim is a person described in certain 

sections of the Family Code; and (3) “the offense is committed by intentionally, 

knowingly, or recklessly impeding the normal breathing or circulation of the blood 

of the person by applying pressure to the person’s throat or neck or by blocking the 

person’s nose or mouth.” Id. § 22.01(a)(1), (b)(2)(B); see Price v. State, 457 S.W.3d 

437, 442 (Tex. Crim. App. 2015). 
8

We note at the outset that physical evidence is not necessary to affirm a sexual 

assault conviction, particularly when “the complainant provides ample testimony to 

establish that a sexual assault occurred.” See Bargas v. State, 252 S.W.3d 876, 888 

(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). Here, K.M.’s testimony 

established that both sexual assault and occlusion assault occurred as alleged. 

Conversely, Appellant denied her allegations in his testimony. Thus, this is a classic 

“he said, she said” case where the two participants to the event offer diametrically 

opposite versions of what happened.

The jury is the exclusive judge of the credibility of witnesses and the weight 

of the evidence. See Isassi, 330 S.W.3d at 638. Thus, the jury is free to believe all 

or any part of a witness’s testimony or disbelieve all or any part of that testimony. 

See Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 

206 S.W.3d 620 (Tex. Crim. App. 2006). To the extent that there are conflicts in the 

evidence or the witnesses’ testimony, we presume that the jury resolved the conflicts 

in favor of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326; 

Clayton, 235 S.W.3d at 778. To the extent that Appellant’s testimony conflicted 

with K.M.’s account, we defer to the jury’s implicit finding that K.M.’s version was 

the more accurate of the two accounts. Additionally, the matters concerning the 

relations between Appellant and K.M. after the alleged sexual assault, and her 

application for an immigration visa based on her status as a victim of assault, were 

matters that the jury was free to disregard in deciding to believe K.M.’s account. 

There was ample evidence that any rational jury could have found the essential 

elements of the offenses of sexual assault and occlusion assault beyond a reasonable 

doubt. We overrule Appellant’s first issue.

Excited Utterance

Appellant asserts in his second issue that the trial court erred by overruling his 

hearsay objections to the deputies’ testimony about the details of the assault that 
9

K.M. told them. The trial court overruled Appellant’s hearsay objections after the 

State asserted that K.M.’s statements to the officers constituted an excited utterance.

Appellant asserts on appeal that the statements did not constitute an excited utterance 

because the record does not demonstrate the amount of time between the alleged 

assault and K.M.’s statements to the deputies or the reason why K.M. appeared to 

be upset. 

We review a trial court’s ruling on the admissibility of evidence for an abuse 

of discretion. 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). 

We will uphold a trial court’s evidentiary ruling on appeal if it is correct on any 

theory of law that finds support in the record. Gonzalez v. State, 195 S.W.3d 114, 

125–26 (Tex. Crim. App. 2006); Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—

Eastland 2015, no pet.).

Hearsay is a statement, other than one made by the declarant while testifying 

at trial, that is offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d). 

Hearsay is inadmissible except as provided by statute or the Rules of Evidence.

TEX. R. EVID. 802. Excited utterances are admissible as an exception to the hearsay 

rule. TEX. R. EVID. 803(2). An excited utterance is a “statement relating to a 

startling event or condition, made while the declarant was under the stress of 

excitement that it caused.” Id.; see McCarty v. State, 257 S.W.3d 238, 239 (Tex. 

Crim. App. 2008).

The spontaneous nature of the statement is the main factor to be considered 

when a court determines the admissibility of an excited utterance. Tezeno v. State, 

484 S.W.2d 374, 379 (Tex. Crim. App. 1972). The declarant must have made the 

statement before the excitement that is caused by the startling event or condition has 

abated. Tienda v. State, 479 S.W.3d 863, 875 (Tex. App.—Eastland 2015, no pet.). 
10

This is so because the excited utterance exception is based on an assumption that the 

person making the statement is not then capable of the kind of reflection that would 

enable her to fabricate the information about which she testifies. Apolinar v. State, 

155 S.W.3d 184, 186 (Tex. Crim. App. 2005). The trustworthiness of the statement 

is founded on the fact that it is the event that speaks through the person and not 

merely the declarant relating the event. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.

Crim. App. 2003). 

In McCarty v. State, the Texas Court of Criminal Appeals laid out three 

conditions for a court to consider when it determines the admissibility of a hearsay 

statement under the excited utterance exception:

(1) the “exciting event” should be startling enough to evoke a truly 

spontaneous reaction from the declarant; (2) the reaction to the startling 

event should be quick enough to avoid the possibility of fabrication; 

and (3) the resulting statement should be sufficiently “related to” the 

startling event, to ensure the reliability and trustworthiness of that 

statement. 

257 S.W.3d at 241. The Court of Criminal Appeals in Zuliani held that “[t]he critical 

determination is ‘whether the declarant was still dominated by the emotions, 

excitement, fear, or pain of the event’ or condition at the time of the statement.” 97 

S.W.3d at 596 (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App.

1992)). “Stated differently, a reviewing court must determine whether the statement 

was made ‘under such circumstances as would reasonably show that it resulted from 

impulse rather than reason and reflection.’” Zuliani, 97 S.W.3d at 596 (quoting 

Fowler v. State, 379 S.W.2d 345, 347 (Tex. Crim. App. 1964)). 

Here, the deputies testified that K.M. was very emotional at the time she made

her statement to them. Deputy Gandy testified that K.M. was “very sad, defeated, 

almost ashamed.” Deputy Fernandez described K.M.’s demeanor as “very upset,” 

and that “it seemed very obvious that she had been through something.” A sexual 
11

assault would certainly be an exciting, startling event that would evoke an excited 

utterance from the victim. See McCarty, 257 S.W.3d at 241. Additionally, K.M.’s

post-assault statement to the deputies was related to that event. See id. The question 

then becomes whether K.M.’s statement to the deputies was the result of impulse 

rather than reason and reflection. See Zuliani, 97 S.W.3d at 596. While the evidence 

does not show the exact amount of time between the assault and her statement to the 

deputies, the record does not show that the trial court abused its discretion in 

determining that her emotionally charged statement constituted an excited utterance.

Moreover, K.M.’s statement to the deputies was consistent with her own 

testimony describing the event as well as her description of the event to Brookings. 

Thus, to the extent that the trial court may have erred by admitting her statement to 

the deputies as an excited utterance, the error would not be reversible because the 

evidence was cumulative of unobjected to evidence. See Dunn v. State, 125 S.W.3d 

610, 615 (Tex. App.—Texarkana 2003, no pet.) (“The cases uniformly hold that the 

rule is that the improper admission of evidence does not constitute reversible error 

if the same facts are proved by other properly admitted evidence.” (citing Brooks v. 

State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999)). We overrule Appellant’s 

second issue.

Expert Testimony

Appellant asserts in his third issue that the trial court erred when it allowed 

Judy Drury to testify as an expert witness. The State called as a witness Judy Drury 

of Safe Place of the Permian Basin. She is a licensed professional counselor, a 

family violence therapist, and the program director at the shelter’s Midland location. 

The State offered Drury as an expert to which Appellant’s trial counsel did not 

object. After Drury stated that she did not know K.M., Appellant’s trial counsel 

asked to approach the bench at which time he objected on relevancy grounds and 

argued that Drury’s testimony would not be relevant if she had never worked with 
12

K.M. The trial court overruled Appellant’s relevancy objection and it permitted 

Drury to continue testifying.2

 

Drury testified that family violence is about “power and control.” She 

explained that there is an underlying pattern of power and control that can take many 

forms. Drury testified that it is difficult for a victim of family violence to talk about 

it, and that is “very common” for people in abusive relationships to delay seeking

help. She also described a cycle of violence that consists of three phases: tension 

building, the explosive phase, and the honeymoon phase. Drury described the 

honeymoon phase as “promises are made. It will never happen again. I’m so sorry. 

Sometimes there’s flowers, gifts, lots of promises, promises for counseling, go to 

church.” Drury testified that during the honeymoon phase the victim will many 

times return to the abuser, drop criminal charges, or change their mind. She also 

testified that many times physical violence and sexual violence “go hand in hand,” 

and that sometimes after sexual violence, the victim will go back with their abuser.

An expert witness that is qualified as such by “knowledge, skill, experience, 

training, or education may testify in the form of an opinion or otherwise if the 

expert’s scientific, technical, or other specialized knowledge will help the trier of 

fact to understand the evidence or to determine a fact in issue.” TEX. R. EVID. 702. 

Any and all scientific testimony or evidence must be both relevant and reliable as a 

precondition to admissibility. Wells v. State, 611 S.W.3d 396, 426 (Tex. Crim. App. 

2020) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993); 

Kelly v. State, 824 S.W.2d 568, 572–73 (Tex. Crim. App. 1992)). The admissibility 

2

To the extent that Appellant complains about the admission of Drury’s testimony on any basis 

other than relevancy, such a complaint was not preserved for appellate review. See Wilson v. State, 71 

S.W.3d 346, 349 (Tex. Crim. App. 2002) (issue on appeal must comport with the objection made at trial) 

(citing Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986)).
13

of scientific evidence, and thus its relevance and reliability, is determined by the trial 

court in its function as the gatekeeper. Id. A trial court’s admission of expert 

testimony will rarely be disturbed on appeal because “the possible spectrum of 

education, skill, and training is so wide, a trial court has great discretion in 

determining whether a witness possesses sufficient qualifications to assist the jury 

as an expert on a specific topic in a particular case.” Rodgers v. State, 205 S.W.3d 

525, 527–28 & n.9 (Tex. Crim. App. 2006).

“[T]he proponent of scientific evidence must show by clear and convincing 

proof that the proffered evidence is sufficiently reliable and relevant to assist the jury 

in accurately understanding other evidence or in determining a fact in issue.” Wells, 

611 S.W.3d at 426 (citing Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 

2000)). Here, Appellant did not object to Drury’s qualifications or the reliability of 

her expert testimony. Instead, Appellant objected to the relevancy of her testimony. 

To be admissible at trial, evidence must be relevant. TEX. R. EVID. 402. 

“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable 

than it would be without the evidence; and (b) the fact is of consequence in 

determining the action.” TEX. R. EVID. 401. “Relevance is ‘a looser notion than 

reliability’ and is ‘a simpler, more straight-forward matter to establish.’” Tillman v. 

State, 354 S.W.3d 425, 438 (Tex. Crim. App. 2011) (quoting Jordan v. State, 928 

S.W.2d 550, 555 (Tex. Crim. App. 1996)). 

In Luna v. State, we recently noted that “[c]ourts have specifically permitted 

the use of expert testimony on the cycle of family violence and its dynamics of power 

and control to help juries understand a victim’s delay, reluctance, and 

inconsistencies in reporting abuse as well as other behavior, including recanting a 

report of abuse, consistent with that of family violence victims.” 687 S.W.3d 79, 

96 & n.2 (Tex. App.—Eastland 2024, pet. filed) (quoting Davis v. State, No. 05-19-

00625-CR, 2020 WL 5015276, at *8 (Tex. App.—Dallas Aug. 25, 2020, no pet.) 
14

(mem. op., not designated for publication) (collecting cases)). As was the case in 

Luna,

3 we conclude that Drury’s expert testimony was relevant and probative to 

explain the behavioral characteristics of family violence victims in general. See id. 

at 96–97, 99.

Here, the evidence established that K.M. continued to see and have sexual 

relations with Appellant after the sexual assault. Drury’s description of the 

honeymoon phase and the behavior of victims of family violence was helpful to 

explain to the jury the reasons why K.M. would resume seeing and being with 

Appellant after the assault. As such, Drury’s expert testimony was relevant and 

probative to explain the behavioral characteristics of family violence victims. See 

id. Thus, the trial court did not abuse its discretion by overruling Appellant’s 

relevancy objection to Drury’s testimony. We overrule Appellant’s third issue.

Evidence of Threatened Violence

In his fourth issue, Appellant contends that the trial court erred by allowing 

K.M. to testify about text messages received by her and Appellant during their 

relationship. He also challenges the trial court’s admission of exhibits containing 

the transcriptions of phone conversations between K.M. and Appellant that K.M. 

recorded. 

The matter of the text messages came up when the prosecutor asked K.M. 

“Throughout your relationship, did [Appellant] tell you that the cartel was after 

you?” Appellant’s trial counsel asked to approach the bench, at which point the trial 

court asked counsel for the State, “How is that relevant?” Counsel for the State 

replied as follows: 

It’s how he controlled and manipulated her. He led her to believe for 

years that he was the only thing that was keeping her and her family 

alive. And I have text messages that he would send her as though he 

3

We note that Drury was also the expert witness at issue in Luna. See id. at 94.
15

were the cartel from his phone, including a picture with, like, a bloody 

nose where he said that they beat him up. . . . [W]hat I’m saying is that

there was no cartel and he was lying about the whole thing to control 

her.

The trial court announced that it would permit evidence of the threatening text 

messages, specifically noting that the evidence was relevant. Appellant’s trial 

counsel then objected to the evidence under Rules 403 and 404, which the trial court 

overruled. Appellant’s trial counsel also objected on relevancy grounds to text 

messages received from third parties. 

After the trial court overruled Appellant’s relevancy objection, K.M. testified 

that “[t]hose messages were supposedly from people who were looking for me, to 

kill me or to do something to my family.” K.M. further testified that Appellant did 

not ever tell her why these people were “after” her, and that some of the messages 

came from his phone number. K.M. stated that she believed that Appellant was the 

only person that could protect her and her family from these threats. Additionally, 

K.M. testified that she left Midland because the people sending these messages gave 

her a deadline to leave town. 

K.M. testified that she recorded phone conservations with Appellant after the 

assault. She testified that she recorded the phone conversations because, “In some 

way, it was a way of me attempting to protect myself in case that he will attempt to 

stop me. I already had my suspicions that he may be the one who was sending me 

these text messages.” Appellant’s trial counsel objected to the transcriptions of the 

phone conversations on the basis that they were not relevant. 

Appellant asserts that the text messages and recorded phone conversations 

were not relevant because they did not make “the facts alleged in the indictment 

more or less probable.” He further contends that this evidence confused the jury by 

injecting matters that were beyond the events of the alleged assault. 
16

With respect to relevancy, the text messages and phone conversations were 

relevant to show the nature of the relationship between K.M. and Appellant. 

Article 38.371 applies to family-violence prosecutions. TEX. CODE CRIM. PROC.

ANN. art. 38.371 (West Supp. 2023); see TEX. FAM. CODE ANN. §§ 71.0021(b), 

71.003, 71.005 (West 2019); see also James v. State, 623 S.W.3d 533, 545 (Tex. 

App.—Fort Worth 2021, no pet.). Article 38.371 expressly allows “evidence of all 

relevant facts and circumstances that would assist the trier of fact in determining 

whether the actor committed the offense . . . including testimony or evidence 

regarding the nature of the relationship” between the accused and the complainant. 

CRIM. PROC. art. 38.371(b). This article essentially makes evidence about the nature 

of the relationship between the accused and the complainant relevant in a familyviolence prosecution. See James, 623 S.W.3d at 545–46.

Here, there was evidence that K.M. continued to have sexual relations with 

Appellant after the assault—a fact that Appellant has relied upon to challenge the 

sufficiency of the evidence supporting his convictions. The State asked K.M., “And 

why did you have sex with him again after the assault?” to which K.M. replied: 

“When that happened, I will get messages. It was my way, perhaps the wrong way, 

to make sure that he will be calm and he will take care of us.” Accordingly, the text 

messages and phone conversations were relevant to explain why K.M. continued to 

have a relationship with Appellant. 

Appellant also asserts on appeal that the admission of the text messages and 

recorded phone messages violated Rule 403. Under Rule 403, a trial court may 

exclude relevant evidence if its probative value is substantially outweighed by the 

danger of “unfair prejudice, confusing the issues, misleading the jury, undue delay, 

or needlessly presenting cumulative evidence.” TEX. R. EVID. 403; see Young v. 

State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009). “Rule 403 favors the admission 

of relevant evidence and carries a presumption that relevant evidence will be more 
17

probative than prejudicial.” Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 

2002); Render v. State, 347 S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d). 

Evidence is unfairly prejudicial when it has the undue tendency to suggest an 

improper basis for reaching a decision. Reese v. State, 33 S.W.3d 238, 240 (Tex. 

Crim. App. 2000); Render, 347 S.W.3d at 921.

In reviewing a trial court’s determination under Rule 403, a reviewing court 

is to reverse the trial court’s judgment “rarely and only after a clear abuse of 

discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting 

Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990)). When 

conducting a Rule 403 analysis, the trial court must balance the following factors:

(1)the inherent probative force of the proffered item of evidence 

along with (2) the proponent’s need for that evidence against (3) any 

tendency of the evidence to suggest [a] decision on an improper 

basis, (4) any tendency of the evidence to confuse or distract the 

jury from the main issues, (5) any tendency of the evidence to be 

given undue weight by a jury that has not been equipped to evaluate 

the probative force of the evidence, and (6) the likelihood that 

presentation of the evidence will consume an inordinate amount of 

time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). These 

factors may well blend together in practice. Id. Rule 403, however, does not require 

that the balancing test be performed on the record. Greene v. State, 287 S.W.3d 277, 

284 (Tex. App.—Eastland 2009, pet. ref’d). In overruling a Rule 403 objection, the 

trial court is assumed to have applied a Rule 403 balancing test and determined that 

the evidence was admissible. Id.

The first Gigliobianco factor focuses on the inherent probative force of the 

proffered evidence. Gigliobianco, 210 S.W.3d at 641. As the Court of Criminal 

Appeals explained in Gigliobianco, “probative value” is more than just relevance. 

Id. It refers to how strongly an item of evidence “serves to make more or less 
18

probable the existence of a fact of consequence to the litigation[,] coupled with the 

proponent’s need for that item of evidence.” Id. We have already addressed the 

relevance of the challenged evidence to show the nature of the relationship between 

K.M. and Appellant. Additionally, the messages were relevant to show the reason 

why K.M. continued to meet with Appellant after the assault.

With respect to the State’s need for the evidence under the second 

Gigliobianco factor, we have noted that Appellant attempted to use his continuing 

relationship with K.M. as a reason to refute the assault allegations. K.M. pointed to 

the text messages as a reason why she continued to see Appellant afterwards. Thus, 

the text messages and phone conversations were necessary to the State’s efforts to 

rebut Appellant’s denial of the assault. 

The remaining Gigliobianco factors focus on the potential negative effects of 

the proffered evidence. Garcia v. State, 630 S.W.3d 264, 269 (Tex. App.—Eastland 

2020, no pet.). The third factor focuses on the tendency of the evidence to suggest 

a decision on an improper basis. Id. at 268. Evidence is not excludable under 

Rule 403 if it is merely prejudicial; “all evidence against a defendant is . . . designed 

to be prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013). 

Instead, Rule 403 is concerned with evidence that is unfairly prejudicial. 

Gigliobianco, 210 S.W.3d at 641, see Pawlak, 420 S.W.3d at 811. The fourth factor 

focuses on the potential of the proffered evidence to confuse or distract the jury from 

the main issues, and the fifth factor focuses on the potential of the proffered evidence 

to mislead the jury. Roe v. State, 660 S.W.3d 775, 785 (Tex. App.—Eastland 2023, 

pet. ref’d). 

Here, the potential for the text messages to be unfairly prejudicial was 

tempered by the fact that Appellant acknowledged that the couple received 

threatening messages. He further testified that “mysterious” people were texting 

threats to K.M., that these people had his phone, and that they were texting K.M. 
19

while he was present with them. Yet, he testified that he did not know who these 

people were. Because Appellant offered an explanation during his testimony about 

the text messages for the jury to consider, the probative value of the evidence was 

not substantially outweighed by the danger of unfair prejudice. 

Finally, the sixth factor focuses on the time needed to present the proffered 

evidence and whether it is cumulative of other evidence. Id. This factor does not 

weigh against the admissibility of the text messages and phone conversations.

Rule 403 contemplates excluding evidence only when there is a “clear 

disparity” between the offered evidence’s prejudice and its probative value. 

Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v. 

State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). Considering the standard of 

review, the presumption favoring admissibility of relevant evidence, and the 

Gigliobianco factors, we cannot conclude that the trial court abused its discretion in 

overruling Appellant’s Rule 403 objection. See Hammer, 296 S.W.3d at 568 

(“Because Rule 403 permits the exclusion of admittedly probative evidence, it is a 

remedy that should be used sparingly, especially in ‘he said, she said’ . . . cases that 

must be resolved solely on the basis of the testimony of the complainant and the 

defendant.” (footnote omitted)). We overrule Appellant’s fourth issue.

Attorney’s Fees

In his fifth issue, Appellant asserts that the trial court erred by requiring him 

to pay court-appointed attorney’s fees in the amount of $8,280. Appellant contends 

that it was error for the trial court to assess court-appointed attorney’s fees because 

he was found indigent at the outset of the case and the record does not contain 

evidence of a material change in his financial circumstances. The State concedes 

that Appellant’s contention is correct. 

An indigent defendant cannot be taxed the cost of services rendered by his 

court-appointed attorney unless the trial court finds that the defendant has the 
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financial resources to repay those costs in whole or in part. Smith v. State, 631 

S.W.3d 484, 501 (Tex. App.—Eastland 2021, no pet.) (citing Mayer v. State, 309 

S.W.3d 552, 556 (Tex. Crim. App. 2010)); see CRIM. PROC. art. 26.05(g). The Texas 

Court of Criminal Appeals has held that the trial court must find that the defendant 

had the ability to repay court-appointed attorney’s fees prior to assessing such fees 

against an indigent defendant. Cates v. State, 402 S.W.3d 250, 251–52 (Tex. Crim. 

App. 2013); see also Mayer, 309 S.W.3d at 556 (“[T]he defendant’s financial 

resources and ability to pay are explicit critical elements in the trial court’s 

determination of the propriety of ordering reimbursement of costs and fees.”). 

Further, a “defendant who is determined by the [trial] court to be indigent is 

presumed to remain indigent for the remainder of the proceedings in the case unless 

a material change in the defendant’s financial circumstances occurs.” Cates, 402 

S.W.3d at 251 (quoting CRIM. PROC. art. 26.04(p)).

Appellant filed an affidavit of indigence certifying that he did not have the 

necessary funds to hire an attorney for his defense. The trial court determined that 

Appellant was indigent and appointed trial counsel to represent Appellant’s interest 

in all proceedings in the case. Subsequent to this appointment, the trial court did not 

receive evidence, nor did it issue a finding, that Appellant had the ability to pay any 

portion of the attorney’s fees that were incurred by his court-appointed attorney.

Moreover, nothing in the record indicates that (1) Appellant is no longer indigent or 

(2) the trial court made a subsequent determination that Appellant’s financial 

circumstances had materially changed or that he had the financial resources or ability 

to pay the court-appointed attorney’s fees of $8,280 that were assessed against him. 

Because the trial court improperly assessed and ordered that Appellant is financially 

responsible for the payment of the attorney’s fees incurred by his court-appointed 

attorney, we must modify the trial court’s judgments to remove the improperly 
21

assessed fees. See Cates, 402 S.W.3d at 252; Smith, 631 S.W.3d at 501. We sustain 

Appellant’s fifth issue.

This Court’s Ruling

We modify the judgments so as to delete the requirement for Appellant to pay 

court-appointed attorney’s fees of $8,280. We also modify the district clerk’s bill of 

costs and the order to withdraw funds from Appellant’s inmate trust account to delete 

the court-appointed attorney’s fees of $8,280 that were ordered to be assessed 

against Appellant. As modified, we affirm the judgments of the trial court.

JOHN M. BAILEY

CHIEF JUSTICE

June 20, 2024

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

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.