COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00077-CR

LUIS CESAR GUTIERREZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1433731D

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MEMORANDUM OPINION1

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Appellant Luis Cesar Gutierrez appeals from his conviction for continuous 

sexual abuse of a child younger than fourteen (CSA) and twenty-eight year 

sentence. In three points, Gutierrez complains of the admission of extraneous 

bad-act evidence and the imposition of two statutorily mandated court costs. 

 

1See Tex. R. App. P. 47.4.
2

Because we conclude his points raise no reversible error, we affirm the trial 

court’s judgment.

I. BACKGROUND

Gutierrez was indicted with the CSA of his ten-year-old stepdaughter, 

Nina.2 See Tex. Penal Code Ann. § 21.02 (West Supp. 2016). At trial, Nina

testified that when her mother was not at home, Gutierrez would put his hands 

inside her underwear, touch her female sexual organ with his hand, and digitally 

penetrate her vagina. These incidents—numbering approximately forty-five 

times—began when Nina was ten and continued until she was thirteen. Nina 

stated that Gutierrez also physically hit her on several occasions, which she 

would occasionally, yet fruitlessly, report to her mother or grandparents. Nina did 

not disclose the sexual abuse until the summer after she graduated from high 

school, spurred by her discovery that her brother had been caught putting his 

hands down his cousin’s pants. 

Ann, a former teenaged neighbor of Gutierrez’s, testified at the guiltinnocence phase of trial that when she was thirteen or fourteen, she went to 

Gutierrez’s house to get her sister. Gutierrez asked her what “turned [her] on” 

and tried to kiss her. When Ann pushed him away and began to leave with her 

sister, Gutierrez hugged Ann and said that “he was sorry if [Ann] felt something 

poking [her],” which Ann took to mean that Gutierrez had an erection. 

 

2To protect the involved minors’ identities, we refer to them by aliases. 

See Tex. R. App. P. 9.10(a)(3); 2d Tex. App. (Fort Worth) Loc. R. 7.
3

The jury found Gutierrez guilty of the CSA of Nina and after a punishment 

hearing, assessed his punishment at twenty-eight years’ confinement. In the 

resulting judgment imposing the sentence assessed by the jury, the trial court 

imposed court costs of $679 against Gutierrez. The district clerk’s itemized bill of 

costs, which was not incorporated into the judgment, reflected that $100 of the 

costs was for “Child Abuse Prv” and that $133 was for “CCC-Felony.” 

II. ADMISSION OF ANN’S TESTIMONY

Gutierrez initially argues that the trial court abused its discretion by 

admitting “evidence of an extraneous assault purportedly committed by 

[Gutierrez]”—Ann’s testimony. Gutierrez asserts that even though admissible 

under article 38.37, the evidence was substantially more prejudicial than 

probative and should have been excluded. See Tex. Code Crim. Proc. Ann. art. 

38.37, § 2(b) (West Supp. 2016). 

A. PRESERVATION OF APPELLATE COMPLAINT

The State asserts that Gutierrez’s overruled objection to Ann’s testimony—

“[Ann’s testimony is] inadmissible under 401, 402, and also prejudicial in this 

case”—did not preserve his appellate complaint under rule 403 for our review 

because he failed to refer to rule 403 or specifically state that the probative value 

was outweighed by its prejudicial effect. See Tex. R. Evid. 401–03. We 

disagree. 

By referring to rules 401 and 402—governing the admissibility of relevant 

evidence—and then immediately stating that Ann’s testimony was “also 
4

prejudicial”—a ground to exclude otherwise admissible, relevant evidence under 

rule 403—Gutierrez sufficiently alerted the trial court to the specifics of his 

objection founded on the alleged unduly prejudicial nature of the testimony under 

rule 403. See Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1)(B); see, e.g., 

Goswick v. State, No. 11-16-00164-CR, 2017 WL 2986841, at *4 (Tex. App.—

Eastland July 13, 2017, no pet.) (mem. op., not designated for publication); 

Malone v. State, 405 S.W.3d 917, 925–26 (Tex. App.—Beaumont 2013, pet. 

ref’d); Blackburn v. State, 820 S.W.2d 824, 827 (Tex. App.—Waco 1991, pet. 

ref’d); cf. Lewis v. State, No. 02-16-00179-CR, 2017 WL 2686325, at *9 (Tex. 

App.—Fort Worth June 22, 2017, no pet. h.) (mem. op., not designated for 

publication) (concluding objection only stating that evidence was “prejudicial” did 

not preserve appellate argument under rule 403); Checo v. State, 402 S.W.3d 

440, 451 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (holding trial objection 

“on the basis of Rule 403” did not preserve error for appeal because such an 

objection “fails to identify . . . which of the five distinct grounds for excluding 

evidence listed in the rule is being argued as a basis for exclusion”). Gutierrez’s 

trial objection was sufficient to preserve his appellate argument under rule 403

for our review.3 See generally Bekendam v. State, 441 S.W.3d 295, 299–300 

 

3We note that although the State gave Gutierrez notice that it intended to 

offer Ann’s testimony at trial, the trial court did not hold a hearing regarding the 

admissibility of Ann’s testimony as required by article 38.37. Tex. Code Crim. 

Proc. Ann. art. 38.37, §§ 2-a, 3. But Gutierrez did not object to the lack of an 

article 38.37 hearing in the trial court and does not raise that argument on 

appeal. See Stephens v. State, Nos. 02-15-00046-CR, 02-15-00047-CR, 
5

(Tex. Crim. App. 2014) (eschewing “hyper-technical” application of preservation 

requirements if complaining party clearly and timely alerts trial court to bases for 

objection and raises those same bases on appeal). 

B. PROBATIVE VALUE BALANCED AGAINST PREJUDICIAL EFFECT

Otherwise relevant and admissible evidence may be excluded if its 

probative value is substantially outweighed by its unfairly prejudicial effect. See 

Tex. R. Evid. 403. And even when extraneous bad-act evidence is relevant 

under article 38.37, such evidence must meet the dictates of rule 403 if that issue 

is raised in the trial court. See Belcher v. State, 474 S.W.3d 840, 847 (Tex. 

App.—Tyler 2015, no pet.); Sanders v. State, 255 S.W.3d 754, 760 (Tex. App.—

Fort Worth 2008, pet. ref’d). We review a trial court’s determination under rule

403 for a clear abuse of discretion. See Mozon v. State, 991 S.W.2d 841, 846–

47 (Tex. Crim. App. 1999). In this review and recognizing that the trial court was 

in a superior position to gauge the impact of the evidence, we measure the trial 

court’s ruling against the rule 403 balancing criteria: (1) the inherent probative 

force of the evidence along with (2) the State’s need for the 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 

 

2016 WL 2586639, at *7 (Tex. App.—Fort Worth May 5, 2016, pet. ref’d) (mem. 

op., not designated for publication). A formal hearing under rule 403 is not 

required. See Cruz v. State, 122 S.W.3d 309, 313 (Tex. App.—Houston [1st 

Dist.] 2003, no pet.); Hitt v. State, 53 S.W.3d 697, 706 (Tex. App.—Austin 2001, 

pet. ref’d).
6

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. See Gigliobianco v. 

State, 210 S.W.3d 637, 641–42 (Tex. Crim. App 2006); Mozon, 991 S.W.2d at 

847. At the outset, however, we recognize that rule 403 favors the admission of 

relevant evidence and carries a presumption that relevant evidence will generally 

be more probative than prejudicial. See Shuffield v. State, 189 S.W.3d 782, 787 

(Tex. Crim. App. 2006). It is Gutierrez’s burden to overcome this presumption 

and demonstrate that the probative value of the evidence is substantially 

outweighed by the danger of unfair prejudice. Sanders, 255 S.W.3d at 760.

We conclude that Gutierrez failed to overcome this presumption. Nina’s 

credibility was integral to the State’s case. Because of Nina’s five-year delay in 

reporting the CSA, there was no physical evidence linking Gutierrez to the 

charged offense. Gutierrez attacked Nina’s credibility at trial, asserting that she 

had fabricated the sexual-abuse allegations because she did not get along with 

him, because he had slapped her shortly before she reported the sexual abuse, 

and because she had been in trouble with her mother for her behavior at the time 

she made the report. Gutierrez’s opening statement to the jury showed that

Nina’s credibility was a large part of his defensive case:

[Nina], she hates [Gutierrez]. . . . Hates, hates, hates. She hated 

the way he disciplined her. She hated the way that her mother 

would take his side over things. She hated the way that he wouldn’t 
7

let her go on dates without taking the little sister . . . . [S]he hated 

the way that . . . he would record conversations where she’s calling 

him a stupid asshole to her friends and he records it to show her 

mom. She hated the way that he would follow her around to make 

sure that she wasn’t going off and doing things she wasn’t supposed 

to do.

. . . .

. . . [I]s there scientific or medical testimony? Is there any kind 

of evidence? No. The sex abuse nurse that examined her . . . took 

[Nina’s] word for it. Didn’t even examine her. . . .

. . . .

Do we have collateral issues, divorce, custody? Yes. . . . So 

when I tell you you are going to have a mess judging the credibility 

on this case, it is a burden.

And the State’s presentation of Ann’s testimony took up only 17 of the 214 pages 

in the reporter’s record representing the evidentiary portion of the guilt-innocence 

phase of trial. Factors one, two, and six weigh in favor of admission. See, e.g.,

Lambeth v. State, 523 S.W.3d 244, 249–50 (Tex. App.—Beaumont 2017, no 

pet.); Coleman v. State, No. 06-16-00002-CR, 2017 WL 382419, at *3 (Tex. 

App.—Texarkana Jan. 27, 2017, pet. ref’d) (mem. op., not designated for 

publication); Alvarez v. State, 491 S.W.3d 362, 370–71 (Tex. App.—Houston [1st 

Dist.] 2016, pet. ref’d).

The remaining factors do not show that the probative value of Ann’s 

testimony was substantially outweighed by its prejudicial effect. Of course Ann’s 

testimony was prejudicial, but not unfairly so. Indeed, its prejudicial nature arises 

from the fact that it was especially probative of Gutierrez’s propensity to prey on 
8

young girls. See Belcher, 474 S.W.3d at 848; Bradshaw v. State, 466 S.W.3d 

875, 883–84 (Tex. App.—Texarkana 2015, pet. ref’d). Gutierrez argues that 

because the incident with Ann was not a sexual offense and resulted only in a 

complaint against Gutierrez for assault by offensive contact, it was “not related in 

any way to the tale proffered by [Nina].” But merely because Ann’s testimony did 

not establish a sexual offense against Ann does not mean that it was unfairly 

prejudicial such that its exclusion under rule 403 was mandated. We see no 

indication that Ann’s brief testimony distracted the jury from the main issues in 

the case, suggested a decision on an improper basis, or was given undue weight 

because the jury was ill equipped to evaluate its probative force. See Lambeth, 

523 S.W.3d at 249–50; Gonzales v. State, 477 S.W.3d 475, 481–82 (Tex. App.—

Fort Worth 2015, pet. ref’d). The trial court’s admission of Ann’s testimony was 

not a clear abuse of its broad discretion. We overrule point one. 

III. COURT COSTS

A. CHILD-ABUSE-PREVENTION FEE

In his second point, Gutierrez argues that the statute authorizing a $100 

fee for child-abuse prevention upon conviction for a sexual offense against a 

child, including CSA, is facially unconstitutional because it violates separation of 

powers by turning the judicial branch into a tax collector. See Tex. Code Crim. 

Proc. Ann. art. 102.0186(a) (West Supp. 2016). But we have held that this cost 

is related to the administration of the criminal justice system such that the statute 

authorizing collection of this cost is not facially unconstitutional. See Horton v. 
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State, No. 02-16-00229-CR, 2017 WL 1953333, at *6 (Tex. App.—Fort Worth

May 11, 2017, pet. filed) (en banc) (relying on Ingram v. State, 503 S.W.3d 745, 

749 (Tex. App.—Fort Worth 2016, pet. ref’d)).4 We overrule point two. 

B. CONSOLIDATED FEE

In point three, Gutierrez contends that section 133.102(a)(1) of the local 

government code, authorizing a consolidated fee assessed upon conviction of a 

felony, is facially unconstitutional. Specifically, he attacks the amounts statutorily 

distributed to funds for comprehensive rehabilitation and abused children’s 

counseling, which comprised 9.8306% of the $133 collected. Act of May 29, 

2011, 82d Leg., R.S., ch. 1249, § 13(b), sec. 133.102(e), 2011 Tex. Sess. Law 

Serv. 3348, 3352 (West) (amended 2017) (current version at Tex. Loc. Gov’t 

Code Ann. § 133.102(e) (West Supp. 2016)).

5

Indeed, the court of criminal appeals held these two portions of the 

consolidated fee to be facially unconstitutional because they were not distributed 

for legitimate, criminal-justice purposes. See Salinas v. State, 523 S.W.3d 103, 

109–10 (Tex. Crim. App. 2017). The State recognizes this precedent but argues 

 

4Gutierrez’s appellate counsel recognized this precedent and stated that 

the issue was raised solely “to preserve it for further review.” 

5Effective June 15, 2017, the Texas Legislature amended the 

consolidated-fee statute to delete the distributions for comprehensive 

rehabilitation and abused children’s counseling and to readjust the percentage 

allocations accordingly. Act of May 18, 2017, 85th Leg., R.S., ch. 966, §1, sec. 

133.102(e) (West, Westlaw through 2017 1st C. Sess.) (current version at Tex. 

Loc. Gov’t Code Ann. § 133.102(e)). No party argues that this amended statute 

applies to the consolidated fee assessed against Gutierrez.
10

that because the consolidated fee does not implicate Gutierrez’s personal rights 

and because application of the Salinas holding is subject to a limited retroactive 

approach, Gutierrez is not entitled to relief from these portions of the assessed 

fee. Gutierrez contends that because the court of criminal appeals “does not 

have a monopoly on protecting the people of Texas from unconstitutional 

statutes” and because Salinas does not “explicitly prohibit this Court from” 

granting him relief, this court must delete these portions of the unconstitutional 

consolidated fee assessed against him. 

The court in Salinas expressly stated that its holding would apply 

retroactively only (1) if the defendant challenging the fee had a pending petition 

for discretionary review raising this constitutionality issue on the date of its 

Salinas opinion—May 11, 2017—or (2) if the defendant’s trial ended after the 

Salinas mandate issued—June 30, 2017. Id. at 113. Gutierrez meets neither of 

these exceptions; therefore, he is not entitled to relief. See Horton, 2017 WL 

1953333, at *5–6. We overrule point three.

IV. CONCLUSION

Because the trial court did not clearly abuse its broad discretion by 

admitting Ann’s testimony and because Gutierrez is not entitled to relief from the 

imposition of court costs in the trial court’s judgment, we affirm. See Tex. R. 

App. P. 43.2(a).
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/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: GABRIEL, KERR, and PITTMAN, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: September 28, 2017