NO. 12-19-00314-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RAUL LOPEZ, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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§

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APPEAL FROM THE 114TH 

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Raul Lopez appeals his conviction for continuous sexual abuse of a child. Appellant 

raises two issues on appeal. We affirm.

BACKGROUND

Appellant is the victim’s uncle. According to the victim, Appellant first touched her in a 

sexual manner while they sat in his vehicle when she was approximately in the fifth grade. The 

sexual abuse escalated a few months later into penetration of her sexual organ. These acts 

continued to occur once or twice a week throughout her fifth and sixth grade year. 

At the time, Appellant resided at his girlfriend’s apartment, while the victim resided with 

her grandparents, along with her aunt and uncle and their nine children in a small home.1

Appellant ceased his relationship with his girlfriend, and after living alone or with his child for a 

period of time, he moved into the same home where the victim resided during her seventh grade 

year prior to her fourteenth birthday. Because of the home’s small size and the large number of 

people living there, Appellant and the victim shared sleeping quarters in the living room, where 

the victim slept on a bed while Appellant slept on the sofa. Once Appellant moved into the 

home, he continued to commit various acts of sexual abuse on a near nightly basis. Furthermore,

1 The victim’s aunt and uncle eventually had a tenth child, who also resided at the home. 
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numerous acts of abuse occurred in Appellant’s vehicle throughout this time period. These acts 

continued until two weeks prior to the victim’s outcry when she was sixteen years old. 

According to the victim, Appellant also forced her to consume a “Plan B” pill and drink an 

herbal tea formulated to abort any possible pregnancy.

When the victim was in high school, she eventually disclosed the abuse to her boyfriend. 

Her boyfriend told his mother, who is also the victim’s employer. Her boyfriend’s mother 

notified the authorities. A forensic interviewer at the Children’s Advocacy Center subsequently 

interviewed the victim, who described the abuse. The victim told the interviewer that after the 

abuse began, Appellant required her to perform sexual acts or alternatively send him nude photos 

of her in exchange for gifts he purchased for her. The victim told the interviewer that she sent 

the photos to Appellant on an iPad that he purchased for her because this would temporarily 

relieve her of having to perform physical sexual acts with Appellant. During the course of the 

investigation, Appellant learned that the victim disclosed the nature of the abuse, and the victim 

later explained that he struck her in the face and threatened to “end” her, as well as threatened to 

kill her boyfriend and “take his head off.”

Based on the information gathered in the forensic interview, the police interviewed 

Appellant, who after initially denying any wrongdoing, ultimately admitted that he had sex with 

the victim on one occasion after she allegedly seduced him. He also consented to a search of his 

cell phone, which revealed nude photographs of the victim. The search of the phone also 

revealed messages Appellant sent to the victim such as “Why don’t you love me anymore,” and 

“You are what I want.”

Based on this information, the authorities later obtained a warrant and went to arrest 

Appellant, who spoke only Spanish. When the police arrested Appellant, an officer present to 

translate into Spanish the execution of the warrant told Appellant that they were there to arrest 

him for sexual assault of a child. The officer later explained at the ensuing trial that there is no 

direct translation for “sexual assault” in Spanish, and that the word or phrase used is more akin to 

an assault through physical violence such as strikes. The officer stated that Appellant replied in 

Spanish that he did not assault anyone, and that the sexual relationship was “consensual.”

Furthermore, the officer asked Appellant, “Didn’t you know she was underage?” Appellant 

replied, “Yes.”
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Appellant was indicted for continuous sexual abuse of a child. Appellant pleaded “not 

guilty” to the offense and the matter proceeded to a jury trial. The court’s charge included not 

only the offense of continuous sexual abuse of a child, but also the lesser included offense of 

aggravated sexual assault of a child. The jury ultimately found Appellant guilty of the 

continuous sexual abuse of a child offense and sentenced him to imprisonment for life. This 

appeal followed.

SUFFICIENCY OF THE EVIDENCE

In his first issue, Appellant argues that the evidence is insufficient to support the verdict

due to conflicting evidence regarding the victim’s veracity.

Standard of Review

An appellate court reviews a challenge to the sufficiency of the evidence under the 

standard of review set forth in Jackson v. Virginia. 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 

L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). A 

challenge to the sufficiency of the evidence requires the reviewing court to consider the evidence 

in the light most favorable to the verdict to determine whether any rational trier of fact could 

have found all the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 

99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895. The jury is the exclusive judge of the credibility 

of the witnesses and the weight to be given their testimony, and the reconciliation of conflicts in 

the evidence. Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998). “When the 

record supports conflicting inferences, we presume that the fact finder resolved the conflicts in 

favor of the prosecution and therefore defer to that determination.” Clayton v. State, 235 S.W.3d 

772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are treated equally. Id.

Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, 

and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 

S.W.3d 9, 13 (Tex. Crim. App. 2007).

The sufficiency of the evidence is measured by the elements of the offense as defined by 

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 

1997). A “hypothetically correct” jury charge is “one that accurately sets out the law, is 

authorized by the indictment, does not unnecessarily increase the State’s burden of proof or 
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unnecessarily restrict the State’s theories of liability, and adequately describes the particular 

offense for which the defendant was tried.” Id.

Applicable Law

To establish the offense of continuous sexual abuse of a child, the State must prove that 

the defendant, during a period of time thirty or more days in duration, committed at least two 

acts of sexual abuse against a child younger than fourteen years of age, while he was at least 

seventeen years of age at the time of each of the acts. See TEX. PENAL CODE ANN. § 21.02(b) 

(West 2019). In relevant part, an “act of sexual abuse” is defined as including an act that 

constitutes the offense of indecency with a child by contact, sexual assault, and aggravated 

sexual assault. Id. § 21.02(c)(2)-(4); see id. § 21.11(a)(1), (c) (West 2019) (defining acts that 

constitute indecency with a child by contact, including touching the genitals of a child); see id. § 

22.011(a)(2)(A) (West Supp. 2020) (defining acts that constitute sexual assault of a child, 

including causing penetration of child’s sexual organ by any means); see id. § 22.021(a)(1)(B)(i), 

(a)(2)(B) (West 2019) (enumerating acts that constitute offense of aggravated sexual assault of a 

child, including causing penetration of child’s sexual organ under the age of fourteen). The State 

need not prove the exact dates of the abuse, only that “there were two or more acts of sexual 

abuse that occurred during a period that was thirty or more days in duration.” Brown v. State, 

381 S.W.3d 565, 574 (Tex. App.—Eastland 2012, no pet.); Lane v. State, 357 S.W.3d 770, 773–

74 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (stating that factfinder is not required to 

agree on exact dates that acts of sexual abuse were committed).

Discussion

At the outset, we note that the victim testified unequivocally that Appellant committed 

the offense of continuous sexual abuse of a child. Specifically, she testified that Appellant 

committed numerous aggravated sexual assaults, sexual assaults, and indecency with a child by 

contact offenses that took place over a period of thirty or more days when she was younger than 

fourteen years of age and Appellant was at least seventeen years of age. The testimony of a child 

victim, standing alone, is sufficient to support a conviction for continuous sexual abuse of a 

child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2019); see also Garner v. State, 

523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no pet.).

Appellant nevertheless contends that the evidence conflicts regarding the victim’s 

veracity. As part of this argument, Appellant points to testimony that the victim’s family did not 
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believe her concerning the allegations she made against Appellant. Specifically, the victim’s 

aunt, who is also Appellant’s sister, testified that the victim fabricated the abuse. She testified 

that the home’s size, when coupled with the large number of people living there, shows that 

Appellant and the victim could not have engaged in repeated sexual acts without someone 

overhearing it. However, even with all the other people in the home, only Appellant and the 

victim slept in the living room. The victim explained that Appellant waited until the family was 

asleep and that he shut a door in the living room so that no one would hear them. Furthermore, 

on cross-examination, the victim’s aunt admitted that she and her husband conceived three

children in the same home during this period and that the rest of the family would not have heard 

them have sexual intercourse because they were asleep. Additionally, the victim testified that

many of the acts occurred in Appellant’s vehicle “over and over” throughout the relevant time 

period. 

The victim’s aunt also testified that the victim told her ten times that she falsified the 

allegations so that she could obtain legal documents that would allow her to remain in the 

country. The victim repeatedly denied that she fabricated the allegations or that anyone told her 

that she would improve her immigration status by coming forward with the allegations. The 

victim explained, and her aunt acknowledged, that the victim had applied for and obtained 

Deferred Action for Childhood Arrivals (DACA) status prior to and independent of her outcry, 

meaning that she would not be removed or deported from the country. Moreover, even though 

the victim’s aunt testified that she did not believe the victim and that she believed the victim 

falsified the allegations to obtain legal residency status, she admitted that Appellant confessed to 

her in the hallway during a recess at trial that he had sex with the victim. In any event, the 

credibility of the witnesses and the conflicts in the testimony between the victim and her aunt 

were for the jury to resolve. See Hooper, 214 S.W.3d at 13. Furthermore, a child’s outcry 

testimony, even if contradicted by other evidence or witnesses at trial, retains probative value 

sufficient to prove the offense. See Bargas v. State, 252 S.W.3d 876, 888 (Tex. App.—Houston 

[14th Dist.] 2008, no pet.).

Finally, Appellant admitted that he had sex with the victim, albeit on only one occasion. 

However, he also admitted to the translating officer during his arrest that he did not assault 

anyone, and that the relationship was consensual. Appellant also possessed nude photographs of 

the victim on his phone, just as the victim had explained in her forensic interview. In light of all 
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the circumstances, it was reasonable for the jury to conclude that the sexual abuse occurred more 

than once to satisfy the statutory requirements for continuous sexual abuse of a child. See TEX.

PENAL CODE ANN. § 21.02 (describing statutory requirements to satisfy conviction for 

continuous sexual abuse of a child). Accordingly, based on this record, we hold that a rational 

jury could have found beyond a reasonable doubt that Appellant committed the offense of 

continuous sexual abuse of a child. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 

S.W.3d at 895. Appellant’s first issue is overruled. 

EXCLUSION OF TESTIMONY

In his second issue, Appellant contends that the trial court abused its discretion when it 

excluded evidence regarding her motive for fabricating the accusations, namely, to achieve 

lawful immigration status. 

Standard of Review and Applicable Law 

We review trial court decisions admitting or excluding evidence for an abuse of 

discretion, and under this standard the trial court’s decision admitting or excluding evidence will 

be upheld so long as it is within the “zone of reasonable disagreement.” Beham v. State, 559 

S.W.3d 474, 478 (Tex. Crim. App. 2018).

Texas Rule of Evidence 401 provides that evidence is relevant if it has any tendency to 

make a fact more or less probable than it would be without the evidence. TEX. R. EVID. 401. 

“Generally, all relevant evidence is admissible.” Layton v. State, 280 S.W.3d 235, 240 (Tex. 

Crim. App. 2009); TEX. R. EVID. 402. When determining whether evidence is relevant, it is 

important for courts to examine the purpose for which the evidence is being introduced. Layton, 

280 S.W.3d at 240. “It is critical that there is a direct or logical connection between the actual 

evidence and the proposition sought to be proved.” Id.

Texas Rule of Evidence 403 provides that “[t]he 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.” TEX. R. EVID. 403; Gonzalez v. State, 544 S.W.3d 363, 372 (Tex. Crim. 

App. 2018). “The probative force of evidence refers to how strongly it serves to make the 

existence of a fact of consequence more or less probable.” Id.
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Relevant evidence is presumed to be more probative than prejudicial. Santellan v. State, 

939 S.W.2d 155, 169 (Tex. Crim. App. 1997). All evidence against a defendant is, by its nature, 

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

Rule 403 does not exclude all prejudicial evidence; instead, it focuses on the danger of “unfair” 

prejudice. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Evidence is unfairly 

prejudicial if it has the capacity to lure the factfinder into declaring guilt on a ground other than 

proof specific to the offense charged. Manning v. State, 114 S.W.3d 922, 928 (Tex. Crim. App. 

2003). The trial judge has substantial discretion in balancing probative value and unfair 

prejudice. See Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006).

A Rule 403 balancing test includes, but is not limited to, the following factors: (1) the 

probative value of the evidence; (2) the potential to impress the jury in some irrational, yet 

indelible way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the 

evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). A Rule 403 

analysis may also consider whether there is any tendency of the evidence to confuse or distract 

the jury from the main issues as well as 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.

See Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). “[T]hese factors may 

well blend together in practice.” Id. at 641-42.

We review nonconstitutional error to determine whether it affected the defendant’s 

substantial rights. TEX. R. APP. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 

2001). An error affects a substantial right if it had a substantial and injurious effect or influence 

on the verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A nonconstitutional 

error that does not affect substantial rights must be disregarded. TEX. R. APP. P. 44.2(b).

Discussion

In Tyler Police Department Detective Judson Moore’s investigative report, he wrote that 

he asked the victim whether she was told by anyone that she could receive her immigration 

papers in exchange for coming forward with the allegations against Appellant. She smiled and 

nodded her head in response. Detective Moore noted in his report that this response initially 

concerned him. After a hearing outside the jury’s presence, the trial court excluded this 

evidence. Appellant argues that the trial court abused its discretion in this regard. 
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Detective Moore testified at the hearing that he did not know what the victim was 

thinking in response to this question. Rather, he stated that he needed to further investigate, and

either confirm or dispel his concern and determine whether the victim’s allegations were 

credible. At the hearing, Detective Moore explained that any brief concern he may have had was 

quickly dispelled upon completing his investigation. Therefore, the excluded evidence, 

considered in its entirety, would not support the proposition that he now argues—that Detective 

Moore remained concerned that the victim lied to improve her immigration status. Instead, the 

actual evidence led to the opposite conclusion—that the victim delayed her disclosure of the 

abuse because she feared being deported if she made an outcry, which is what her family and 

Appellant repeatedly told her. Therefore, the probative value of the evidence and Appellant’s 

need for it is slight, especially when considered in its proper context.

Furthermore, even if the trial court should have admitted the evidence, Appellant was not 

harmed by its exclusion. First, it is undisputed that the victim’s DACA status prevents her 

removal from the country irrespective of her cooperation in this criminal investigation. Second,

Appellant’s counsel questioned the victim extensively concerning her motive to fabricate the 

allegations in order to obtain her lawful residency in the country. The jury also heard evidence 

from the victim’s aunt, who testified that neither she nor the rest of her family believed the 

victim’s allegations, and that they thought she fabricated the allegations in order to improve her 

immigration status. When the trial court excludes evidence, and substantially the same or similar 

evidence is admitted elsewhere, any error is harmless. See Mosley v. State, 983 S.W.2d 249, 258 

(Tex. Crim. App. 1998) (op. on reh’g) (explaining that harm from the erroneous exclusion of 

evidence may be mitigated by the admission of similar evidence). The trial court likewise 

allowed defense counsel to argue to the jury that the victim fabricated the allegations in order to 

obtain the lawful status to remain in the country. Finally, Appellant wanted to offer the evidence 

to show that the victim falsified the allegations. Yet defense counsel also argued to the jury, due 

to his admission of a single instance of sexual intercourse, that he is at most guilty of aggravated 

sexual assault of a child, not continuous sexual abuse of a child. Appellant therefore 

acknowledges with this jury argument that the allegations are not totally fabricated. 

Accordingly, we hold that the trial court did not abuse its discretion in excluding the evidence. 

Appellant’s second issue is overruled.
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DISPOSITION

Having overruled both of Appellant’s issues, we affirm the trial court’s judgment.

BRIAN HOYLE

Justice

Opinion delivered October 21, 2020.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 21, 2020

NO. 12-19-00314-CR

RAUL LOPEZ,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 114th District Court

of Smith County, Texas (Tr.Ct.No. 114-1583-18)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment. 

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of 

the court below be in all things affirmed, and that this decision be certified to the court below 

for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.