AFFIRMED and Opinion Filed November 2, 2023 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-00488-CR 

JOE ANGEL RODRIQUEZ, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 380th Judicial District Court 

Collin County, Texas 

Trial Court Cause No. 380-80945-2022 

MEMORANDUM OPINION 

Before Justices Partida-Kipness, Reichek, and Breedlove 

Opinion by Justice Reichek 

Joe Angel Rodriquez appeals his conviction for indecency with a child by 

contact. In three issues, appellant contends the trial court abused its discretion by 

admitting evidence of extraneous conduct and limiting the testimony read back to 

the jury in response to a request. Concluding there was no reversible error, we affirm 

the trial court’s judgment. 

 
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I. Evidence of Extraneous Conduct

 The victim in this case, L.L., was the daughter of a woman with whom 

appellant was in a relationship. L.L. was twelve years old at the time of the offense. 

Before trial, the State filed a notice of intent to call S.G., the daughter of appellant’s 

previous girlfriend, to testify. The notice stated the prosecution intended to present 

evidence that appellant had sexually assaulted S.G. from the time she was eleven or 

twelve years old until she was thirteen.1

 Although evidence of other crimes or 

wrongdoings is generally inadmissible to prove a defendant’s character, or to show 

he acted in conformity therewith, article 38.37 of the Texas Code of Criminal 

Procedure specifically allows this type of evidence in cases involving sexual 

offenses against children. TEX. CODE CRIM. PROC. ANN. art. 38.37. The evidence 

is still subject to exclusion, however, under Rule 403 of the Texas Rules of Evidence 

if the defendant can show it is more prejudicial than probative. See Fisk v. State, 

510 S.W.3d 165, 172 (Tex. App.—San Antonio 2016, no pet.). 

 Appellant challenged the admissibility of S.G.’s testimony under rule 403. A 

hearing on the matter was conducted outside the presence of the jury before trial 

began. At the hearing, S.G. testified to multiple incidents in which she was sexually 

abused by appellant while he was dating her mother. These incidents involved both 

1

 The State additionally notified appellant of its intent to introduce evidence of his 2007 conviction for 

aggravated sexual assault of a child. Although appellant challenged the admissibility of the prior conviction 

at trial, he does not do so on appeal. 
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oral and penile penetration. Following her testimony, appellant’s counsel argued the 

alleged abuse suffered by S.G. was more severe than the single incident of indecent 

contact alleged by L.L., and the disparity in the abuse rendered S.G.’s testimony 

unfairly prejudicial. The trial court ruled the testimony was admissible, stating “the 

probative value of this evidence [was] not outweighed by the danger [of] one or more 

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

delay, or needlessly presenting cumulative evidence.” 

 In his first issue on appeal, appellant contends the trial court abused its 

discretion in admitting S.G.’s testimony without performing the balancing test 

required by Rule 403. Appellant argues the fact that the court ruled on the 

admissibility of the evidence without hearing the State’s case at trial or the defense’s 

rebuttal means it could not have properly evaluated the various factors that needed 

to be weighed. According to appellant, the timing of the court’s ruling “belies any 

presumption that the court conscientiously balanced the value of the proffered 

testimony against the danger it posed.” 

 “A proper Rule 403 analysis includes, but is not limited to, four factors: (1) 

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

irrational and indelible way; (3) the time needed to develop the evidence; and (4) the 

proponent’s need for the evidence.” State v. Mechler, 153 S.W.3d 435, 440 (Tex. 

Crim. App. 2005). The analysis of admissibility using these factors is the same 

regardless of whether the determination occurs before or during trial. Id. Although 
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in some cases the trial court may not have enough information to adequately apply 

the factors at a pretrial hearing, the fact that the determination is made before trial is 

not a categorical abuse of discretion. Id.; see also Turpen v. State, No. 05-22-00284-

CR; 2023 WL 3674600, at *3 (Tex. App.—Dallas May 26, 2023, no pet.) (mem. op., 

not designated for publication). A pretrial determination is proper when the court is 

presented with sufficient information upon which to evaluate the admissibility of the 

evidence. Mechler, 153 S.W.3d at 440; Turpen, 2023 WL 3674600, at *3. 

 The trial court in this case heard S.G. describe the various acts of sexual abuse 

to which she had been subjected by appellant. In addition to S.G.’s testimony, 

counsel reviewed the allegations made by L.L. and the application of the Rule 403 

factors. While the defense stressed the prejudicial nature of S.G.’s testimony, the 

State explained why the evidence was relevant and critical to its case given the lack 

of eyewitness testimony and physical evidence to support L.L.’s allegations. We 

conclude the hearing provided the trial court with sufficient information upon which 

to base its decision. We resolve appellant’s first issue against him. 

 In his second issue, appellant contends the trial court erred in allowing S.G. 

to testify because the prejudicial effect of her testimony significantly outweighed its 

probative value under Rule 403. “If judicial restraint is ever desirable, it is when a 

Rule 403 analysis is reviewed by an appellate tribunal.” Montgomery v. State, 810 

S.W.2d 372, 379 (Tex. Crim. App. 1990) (quoting United States v. Long, 574 F’2d 

761, 767 (3rd Cir. 1978). We rarely reverse a trial court’s determination under Rule 
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403 and do so only if there has been a clear abuse of discretion. Perkins v. State, 

664 S.W.3d 209, 217 (Tex. Crim. App. 1990). 

Rule 403 favors the admission of relevant evidence and presumes relevant 

evidence is more probative than prejudicial. Fisk, 510 S.W.3d at 173. The probative 

value of evidence is how strongly it serves to make more or less probable the 

existence of a fact of consequence to the litigation along with the proponent’s need 

for the evidence. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 

2006). Article 38.37 recognizes the probative value of evidence of extraneous 

offenses against other children to show the defendant’s propensity to commit sexual 

assault of a child. Dies v. State, 649 S.W.3d 273, 285 (Tex. App.—Dallas 2022, pet. 

ref’d). In this case, the similarities between the assaults on S.G. and L.L. 

significantly strengthen the probative value of S.G.’s testimony. Both S.G. and LL. 

were the same age at the time they were assaulted, and appellant was in a relationship 

with each of their mothers. Immediately after appellant’s relationship with S.G.’s 

mother ended, he began dating L.L.’s mother, suggesting he used his relationships 

with women to gain access to their young daughters. See 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) (pattern of assaulting daughters of 

women defendant dated admissible to show consistent behavior). 

 
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With respect to the State’s need for the evidence, we conclude it was 

substantial. There was no eyewitness testimony or physical evidence of the assault. 

The case rested almost entirely on L.L.’s testimony of what occurred. Part of the 

defense’s strategy was to attack L.L.’s credibility. “[T]he Rules of Evidence, 

especially Rule 403, should be used sparingly to exclude relevant, otherwise 

admissible evidence that might bear upon the credibility of either the defendant or 

complainant in such ‘he said, she said’ cases.” Hammer v. State, 296 S.W.3d 555, 

562 (Tex. Crim. App. 2009). In addition, S.G.’s testimony was critical to show 

appellant’s intent when he engaged in the indecent contact with L.L. 

While appellant concedes the relevance of S.G.’s testimony, he argues this 

evidence was unfairly prejudicial because the sexual misconduct to which S.G. 

testified was more extensive than the offense with which he was charged. Evidence 

is unfairly prejudicial if it suggests a decision on an improper basis, such as when it 

arouses the jury’s hostility or sympathy without regard the evidence’s logical 

probative force. Casey v. State, 215 S.W.3d 870, 879-80 (Tex. Crim. App. 2007). 

Testimony concerning extraneous acts of sexual assault that are more serious in 

nature than the offense being tried may be highly prejudicial. But such evidence is 

not necessarily unfairly prejudicial. See Belcher v. State, 474 S.W.3d 840, 848 (Tex. 

App.—Tyler 2015, no pet.). The potential danger of a decision being rendered on 

an improper basis may be minimized by a limiting instruction, which was done in 

this case. See Beam v. State, 447 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 
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2014, no pet.). The charge informed the jury it could consider S.G.’s testimony 

solely for the purpose of determining appellant’s motive intent, knowledge, and 

identity, and the absence of mistake or accident in connection with the assault on 

L.L. We presume the jury followed the trial court’s instructions. See Resendiz v. 

State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003). 

In addition, defense counsel stressed during closing arguments that appellant 

could not be convicted based on what happened to S.G. As was apparent at the pretrial hearing, S.G.’s testimony did not take up a significant amount of time, and it 

was made clear to the jury that the purpose of it was to show appellant’s pattern of 

behavior when the offense involving L.L. occurred. During deliberations, the jury 

asked for clarification on a portion of L.L.’s testimony, indicating they were properly 

focused on the charged offense. 

Based on the foregoing, we conclude the trial court could have reasonably 

concluded the probative value of the evidence was not substantially outweighed by 

the danger of unfair prejudice or any of the other Rule 403 factors. Accordingly, the 

trial court did not err in admitting S.G.’s testimony. We overrule appellant’s second 

issue. 

II. Response to Jury Request

 In his third issue, appellant contends the trial court abused its discretion in 

limiting the testimony provided to the jury in response to an inquiry. During 

deliberations, the presiding juror indicated that members of the panel were in 
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disagreement about “what was said by [L.L.] during her testimony regarding what 

was talked about and with whom the morning after the incident as she was leaving 

for school.” The jury asked that both the direct and cross-examination of L.L. on 

that topic be read back to them. The trial court determined that the following 

exchange from the direct examination of L.L. was responsive to the request. 

 Question: Let’s talk about the next day, how was he acting 

around you the next day? 

 Answer: He was acting very strange, when I woke up the next 

morning I got ready for school and was about to leave until I was 

stopped by my mother and him by the door. I remember him telling me 

something specific that if – if he scared me by coming in my room that 

night because my mom apparently asked him to check on me. 

 Question: Okay. So you are getting ready to go to school and 

you are stopped in the kitchen, and is that when he makes this 

statement? 

 Answer: Yes. 

 Question: What did you do, when he made this statement? 

 Answer: I did not say anything. 

 Question: Okay. Did you tell your mom what had happened? 

 Answer: Not at this point. 

 Question: Why not? 

 Answer: I was too afraid and I did believe it was just a bad 

dream. 

 Question: Tell me more about that. Why did you think it was 

a bad dream? 

 Answer: I wanted to convince myself it was a dream, so I 

didn’t have to come to terms with the fact that somebody did touch me 

like that. 
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Defense counsel asked that two additional exchanges from L.L.’s cross-examination 

be included in the response to the jury. Counsel did not remember the specific 

wording of the first question, but said he had asked L.L. about her forensic interview 

and whether she said during that interview that appellant had acknowledged the 

incident. L.L. responded “No.” The second question concerned when L.L. first 

informed anyone that appellant claimed L.L.’s mother asked him to check on her on 

the night of the offense. L.L. responded she first mentioned it when she met with 

the prosecution a few days before trial. 

Article 36.28 of the code of criminal procedure provides that, if jurors disagree 

as to the testimony of any witness, they may have read to them that part of the 

witness’s testimony that is in dispute. TEX. CODE CRIM. PROC. ANN. art. 36.28; 

Thomas v. State, 505 S.W.3d 916, 923 (Tex. Crim. App. 2016). The purpose of 

Article 36.28 is to balance the concern that the trial court not comment on the 

evidence with the need to provide the jury with the means to resolve any factual 

disputes it may have. Thomas, 505 S.W.3d at 923. The trial court has discretion to 

decide what sections of the testimony will best answer the query and to limit the 

testimony read back accordingly. Id. We do not disturb the trial court’s decision 

under Article 36.28 unless a clear abuse of discretion and harm are shown. Id. 

“When the jury requests a specific and limited portion of testimony, the trial court 

does not abuse its discretion by excluding a portion of the testimony that is not 
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responsive to the jury’s specific inquiry.” Horton v. State, 530 S.W.3d 717, 722 

(Tex. App.—Fort Worth 2017, pet. ref’d). 

The jury in this case specifically asked about L.L.’s testimony concerning 

what was talked about and with whom the morning after the offense. The testimony 

chosen by the trial court was responsive to that request. In contrast, the additional 

testimony requested by appellant’s counsel did not concern either the content of the 

conversation on the morning after the offense or the identities of the people 

participating in the conversation. The questions concerned only when L.L. first 

revealed that the conversation had occurred. Because the testimony requested by 

the defense was not responsive to the jury’s inquiry, we conclude the trial court did 

not abuse its discretion in declining to include it. See Render v. State, 316 S.W.3d 

846, 855 (Tex. App.—Dallas 2010, pet. ref’d) (trial court did not abuse discretion in 

excluding testimony about when abuse occurred in response to jury note asking for 

testimony concerning how abuse occurred). We overrule appellant’s third issue. 

We affirm the trial court’s judgment. 

 

 

Do Not Publish 

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

220488F.U05 

 

/Amanda L. Reichek 

AMANDA L. REICHEK 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

JOE ANGEL RODRIQUEZ, 

Appellant 

No. 05-22-00488-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 380th Judicial 

District Court, Collin County, Texas 

Trial Court Cause No. 380-80945-

2022. 

Opinion delivered by Justice 

Reichek. Justices Partida-Kipness 

and Breedlove participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered November 2, 2023