NUMBER 13-23-00081-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

DAVID RODRIGUEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

ON APPEAL FROM THE 36TH DISTRICT COURT

OF SAN PATRICIO COUNTY, TEXAS

 

OPINION

Before Justices Benavides, Tijerina, and Silva

Opinion by Justice Benavides

A jury convicted appellant David Rodriguez of continuous sexual abuse of a young 

child, a first-degree felony, and assessed his punishment at thirty years’ imprisonment. 

See TEX. PENAL CODE ANN. §§ 12.32(a), 21.02(b). Rodriguez raises two issues on appeal. 

First, he claims the trial court erred by allowing forensic interviewer Penny Green to testify 
2

as an outcry witness because (a) the proper outcry witness had already testified, and 

(b) Green did not actually conduct the complainant’s forensic interview. Second, he 

argues the trial court erred in admitting extraneous offense evidence because (a) Article 

38.37 of the Texas Code of Criminal Procedure is unconstitutional, and (b) the evidence 

was otherwise inadmissible under Texas Rule of Evidence 404(b). We affirm.

I. BACKGROUND

In November of 2021, Rodriguez was indicted for continuous sexual abuse of a 

child under the age of fourteen for allegedly committing two or more acts of sexual abuse 

against his step-granddaughter Violet1 during a period that began on or about April 10, 

2019, and ended on or about April 10, 2021. See id. § 21.02(b). The specific acts of sexual 

abuse alleged in the indictment were different forms of indecency with a child by sexual 

contact. See id. § 21.02(c)(2), (4).

The evidence at trial established that Violet was born on April 11, 2007, making 

her between the ages of eleven and thirteen during the alleged period of sexual abuse. 

Violet, who was fifteen years old at the time of trial, testified that she began living with her 

paternal grandmother and Rodriguez when she was “a baby” and that the first sexual 

contact occurred when she was “probably 11.” She said that Rodriguez came into her 

bedroom while she was taking a nap and began touching her chest, at first over her 

clothes and then under them. Rodriguez reportedly stopped when he heard Violet’s 

grandmother come home. Violet said that this type of touching occurred another “[t]en or 

1 We have adopted the pseudonym assigned to the complainant in the indictment. See TEX. CONST. 

art. 1, § 30(a)(1) (providing that a crime victim has “the right to be treated . . . with respect for the victim’s 

dignity and privacy throughout the criminal justice process”).
3

so” times over a period of “about two years.”

Violet said that the abuse included other types of touching. On occasions, 

Rodriguez would touch her “private area.” Sometimes this was over her clothes, and other 

times it was under her clothes, including under her underwear. The first time Rodriguez

touched her private area, Violet was sitting on the couch watching the cartoon “Teen 

Titans Go!” Rodriguez sat down next to her, turned off the television, and “started off on 

[her] butt and then slowly moved onto [her] private.” Violet recalled that she was “a little 

bit older” than eleven at the time. She said this type of touching also occurred “[a]bout ten 

or more” times.

Finally, Violet testified that Rodriguez also “made [her] touch his privates.” The first 

time this occurred, Violet was sleeping between her grandparents in their bedroom when 

Rodriguez “grabbed [her] hand and made [her] touch his private.” She said that he placed 

her hand “under his pants” and that “[i]t felt hairy and wrinkly.” She recalled that her 

grandmother was asleep at the time because “[s]he was snoring.” She said that this type 

of touching occurred “[a]bout five” times. Violet said that she never told her grandmother 

about the abuse because Rodriguez threatened to hurt her if she told anyone. With the 

encouragement of a close friend, Violet eventually decided to tell Rhonda Edmonds.

Edmonds testified that she is employed as a “case manager” with Communities at 

Schools, which has a contract with the local school district to provide onsite support 

services to students at Violet’s middle school. She said that Violet and a friend came to 

her office on “April 19th.” She described Violet’s demeanor as “timid,” which signaled to 

Edmonds that Violet was going to tell her “something big.” She also said that Violet “was 
4

crying and definitely scared.” Violet told Edmonds that “her grandpa had touched her.” 

Edmonds asked her whether the contact was related to medical care, and Violet told her 

“no.” Edmonds confirmed that this was the extent of their conversation, and Violet did not 

provide her with “any other details.” Edmonds said she then reported the matter to Child 

Protective Services (CPS) because she “knew that this was going to turn into a police 

matter, and [she] did not want to interfere in that in any way, shape or form.” She added, 

“I am not trained for that in any way.”

As part of the ensuing investigation, Violet was taken to the local Children’s 

Advocacy Center (CAC) for a forensic interview, which was conducted by Esmeralda 

Garza. As part of its normal practice, the CAC made a video recording of the interview. 

Before trial commenced, the State announced that Garza was no longer with the CAC 

and was unavailable to testify. The State asked the trial court to allow Green, another 

forensic interviewer with the CAC, to testify in Garza’s place “as the outcry witness” 

because Green “reviewed the CAC video” and previously testified as an expert in other 

child sexual abuse cases. Rodriguez said he would reserve his objection “until actual 

testimony.” Likewise, the trial court deferred its ruling on Green testifying as an outcry 

witness. When the State called Green to testify, Rodriguez took her on voir dire, and 

Green confirmed that she did not conduct Violet’s interview, had never met Violet, and 

that her only familiarity with the case was reviewing the recording of the interview 

conducted by Garza. The trial court found “the witness to be reliable” and allowed her to

testify as an outcry witness.

Green then testified to the allegations Violet allegedly made during her interview 
5

with Garza. Violet reportedly told Garza that Rodriguez began abusing her when she was 

twelve years old. On “several” occasions when Violet’s grandmother was not at home, 

Rodriguez touched Violet’s bare breasts and private area. Rodriguez also forced Violet 

to “touch his private parts.” Violet reportedly said that Rodriguez’s penis “felt like spaghetti 

if you didn’t know what you were touching.” Green said she did not have any concerns 

that Violet was coached because Violet provided sensory details about what happened.

Elana Estrada, a sexual assault nurse examiner at Driscoll Children’s Hospital, 

testified that she examined Violet on April 27, 2021. The medical records from that 

examination were admitted into evidence without objection. They include Violet’s 

description of the abuse during the examination, which Estrada read into the record 

without objection:

It started when I was 10 or 11 and kept going from there. He, my grandpa[,] 

threatened me that he would hurt me if I didn’t keep it a secret. It happened 

every day, I don’t really want to talk about it again. The last time was 2 days 

before I told the school counselor, 2 weeks ago. My grandma had just left. 

I was in the living room watching TV. He came in and turned off the TV and 

started putting his hand down my pants under my clothes and up my shirt 

under my bra. I stopped him by kicking him and I was like, NO! I ran out into 

the back yard.

One time, I think I was 12 or so, he forced me on the bed and tried to put 

his penis in me. He had his pants partly down and pulled my pants down 

partly, but I kicked him in the face. It never went inside anywhere, and he 

never did that again.

In a section of the medical records used to indicate the “[t]ime of the incident,” Estrada 

quoted Violet as saying that the abuse occurred “two years ago until two weeks ago.” In 

another section used to document the type of abuse, Estrada checked boxes indicating 

that the abuse included digital penetration of Violet’s sexual organ.
6

Prior to trial, the State notified Rodriguez of its intention to call Violet’s father and 

aunt to testify regarding their own allegations of prior sexual abuse by Rodriguez. In a 

pretrial hearing, the State asked the trial court to find their testimony admissible under 

Article 38.37 of the Texas Code of Criminal Procedure. Rodriguez agreed that such 

testimony is generally admissible under Article 38.37:

Your Honor, I don’t object to the State’s offer of those two witnesses; 

however, I would reserve any kind of objection to what they actually testify 

to during the trial. But, you know, I understand the law, and I know that they 

are allowed to testify under these circumstances, especially with notice in 

advance.

The trial court said that it had reviewed the State’s notice, including the “brief synopsis of 

what each of these witnesses would be testifying to,” and found that such “evidence more 

probably than not would allow a jury to convict based on that evidence.” 

Violet’s father testified without objection that Rodriguez sexually abused him when 

he was eleven years old. He said that he spent the night in the same bed as Rodriguez 

and his mother, and after his mother left for work the next morning, Rodriguez began 

“spooning” and “touching” his “privates” over and under his clothes. He also recalled 

feeling Rodriguez’s erection. Eventually, Violet’s father was able to leave the room and 

lock himself in his sister’s bedroom. This was the only incident that occurred between 

himself and Rodriguez.

Violet’s aunt also testified without objection that Rodriguez sexually abused her 

when she was a child. She said the first incident occurred when she “was about seven or 

eight years old.” She was watching television in the master bedroom when Rodriguez 

entered the bedroom and “stuck his finger in [her] butt.” She said that the abuse continued 
7

for “a few years” and escalated over time: “He penetrated me. He did everything to me 

throughout time.” She said that on more than ten occasions, Rodriguez penetrated her 

vagina with his penis and that the first such instance occurred when she “was probably 

like eight or nine.”

Rodriguez testified in his own defense and denied all the allegations of sexual 

abuse made against him. The jury returned a guilty verdict and accessed Rodriguez’s 

punishment as described above. This appeal followed.

II. OUTCRY TESTIMONY

By his first issue, Rodriguez argues that the trial court erred by allowing Green to 

testify as an outcry witness because: (1) Edmonds was the first adult Violet made an 

outcry to, and (2) Green was not the person who conducted Violet’s forensic interview.

A. Standard of Review & Applicable Law

Hearsay is an out of court statement offered at trial for the truth of the matter 

asserted in the statement. TEX. R. EVID. 801(d). Hearsay is generally inadmissible unless 

an exception applies. Id. R. 802. Article 38.072 of the Texas Code of Criminal Procedure 

provides a statutory exception that permits the State to introduce certain hearsay 

statements that a child victim of sexual abuse makes to an outcry witness. TEX. CODE 

CRIM. PROC. ANN. art. 38.072, § 2. An outcry witness is the first person over the age of 

eighteen, other than the defendant, to whom the child spoke about the offense. Id. art. 

38.072, § 2(a)(3). Among other requirements, the trial court must hold a hearing outside 

the presence of the jury to determine if the hearsay statement is “reliable based on the 

time, content, and circumstances of the statement.” Id. art. 38.072, § 2(b)(2). To qualify 
8

for the exception, “[t]he statement must be ‘more than words which give a general allusion 

that something in the area of child abuse is going on’; it must be made in some 

discernable manner and is event-specific rather than person-specific.” Lopez v. State, 

343 S.W.3d 137, 140 (Tex. Crim. App. 2011) (quoting Garcia v. State, 792 S.W.2d 88, 91 

(Tex. Crim. App. 1990)).

Hearsay testimony from more than one outcry witness may be admissible under 

Article 38.072 so long as each of the witnesses testifies to a different instance of sexual 

abuse. Id. (“Hearsay testimony from more than one outcry witness may be admissible 

under article 38.072 only if the witnesses testify about different events.”); Rosales v. 

State, 548 S.W.3d 796, 808 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (“The 

outcry witness designation is event-specific, not person-specific.”); see also Quinones v. 

State, No. 13-10-00140-CR, 2011 WL 3841586, at *9 (Tex. App.—Corpus Christi–

Edinburg Aug. 25, 2011, no pet.) (mem. op., not designated for publication) (“[S]o long as 

separate outcry witnesses testify about separate offenses, the testimony of each is 

admissible.”). The testimony of a second outcry witness is not admissible, however, when 

the witness merely provides additional details regarding the same instance of sexual 

abuse. Brown v. State, 189 S.W.3d 382, 387 (Tex. App.—Texarkana 2006, pet. ref’d) 

(“[B]efore more than one outcry witness may testify, it must be determined the outcry 

concerned different events and was not simply a repetition of the same event told to 

different individuals.”).

“A trial court has broad discretion in determining the admissibility of outcry 

statements pursuant to this statute, and the trial court’s exercise of that discretion will not 
9

be disturbed on appeal unless a clear abuse of discretion is established by the record.”

Marquez v. State, 165 S.W.3d 741, 746 (Tex. App.—San Antonio 2005, pet. ref’d). A trial 

court abuses its discretion if it acts arbitrarily or unreasonably, without reference to any 

guiding rules or principles. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019).

The erroneous admission of a hearsay statement constitutes nonconstitutional 

error that must be disregarded unless the error affects the appellant’s substantial rights. 

Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); see TEX. R. APP. P. 44.2(b). 

An appellate court should not overturn a criminal conviction for nonconstitutional error “if 

the appellate court, after examining the record as a whole, has fair assurance that the 

error did not influence the jury, or influenced the jury only slightly.” Barshaw, 342 S.W.3d 

at 93 (quoting Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001)). “In cases 

involving the improper admission of outcry testimony, the error is harmless when the 

victim testifies in court to the same or similar statements that were improperly admitted or 

other evidence setting forth the same facts is admitted without objection.” Gibson v. State, 

595 S.W.3d 321, 327 (Tex. App.—Austin 2020, no pet.) (collecting cases).

B. Edmonds Was Not an Outcry Witness

By his first sub-issue, Rodriguez argues that Green could not be the outcry witness 

because the first adult Violet made an outcry to was Edmonds. See TEX. CODE CRIM.

PROC. ANN. art. 38.072, § 2(a)(3). We agree with the State that Edmonds was not an 

outcry witness, and therefore, her testimony would not preclude a proper outcry witness 

from testifying.

Visibly upset, Violet told Edmonds that “her grandpa had touched her.” Violet 
10

denied that the touching was related to medical care but did not provide Edmonds with 

“any other details” about the alleged abuse. In fact, Edmonds testified that she 

intentionally chose not to ask any further questions because she thought it was better left 

to the proper authorities. As such, Violet’s statement to Edmonds was no more than “a 

general allusion that something in the area of child abuse [wa]s going on.” See Lopez, 

343 S.W.3d at 140 (quoting Garcia, 792 S.W.2d at 91); see also Banda v. State, No. 13-

19-00587-CR, 2021 WL 2006325, at *7 (Tex. App.—Corpus Christi–Edinburg May 20, 

2021, pet. ref’d) (mem. op., not designated for publication) (describing a “proper outcry 

witness” as “the first adult to whom the child tells the details of how, when, and where the 

sexual abuse occurred”). Therefore, contrary to Rodriguez’s assertion, Violet’s statement 

to Edmonds was not a legitimate basis for excluding Green as an outcry witness. See 

Reyes v. State, 274 S.W.3d 724, 728 (Tex. App.—San Antonio 2008, pet. ref’d) 

(concluding that a social worker was not the proper outcry witness because the 

complainant’s statement was merely a general acknowledgment that she had been 

abused); Castelan v. State, 54 S.W.3d 469, 475–76 (Tex. App.—Corpus Christi–Edinburg

2001, no pet.) (concluding that the complainant’s grandmother was not the proper outcry 

witness because the complainant did not relay specific details of the abuse but only stated 

appellant “put his thing in through the back”). We overrule Rodriguez’s first sub-issue 

concerning the admission of Green’s purported outcry testimony.

C. Green Was Not a Proper Outcry Witness

Alternatively, Rodriguez argues that Green was not a proper outcry witness

because Violet made the outcry to Garza—not Green. We agree.
11

“Article 38.072 of the Texas Code of Criminal Procedure, the outcry statute, is a 

hearsay exception statutorily limited to live testimony of the outcry witness.” Bays v. State, 

396 S.W.3d 580, 581 (Tex. Crim. App. 2013). The outcry witness is “the first adult a child 

confides in regarding the abuse.” Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. 

App. 2005); see TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(3). Article 38.072 is a 

“carefully limited” exception to the general hearsay rule with “stringent procedural 

requirements.” See Martinez, 178 S.W.3d at 811; Bays, 396 S.W.3d at 591.

Under the plain language of the statute, Green could not be the outcry witness 

because she was not “the first person, 18 years of age or older, other than [Rodriguez], 

to whom [Violet] made a statement about the offense.” See TEX. CODE CRIM. PROC. ANN.

art. 38.072, § 2(a)(3). Instead, based on the State’s own representations, that person was 

Garza. The State was therefore limited to introducing Violet’s outcry statement “through” 

Garza’s live testimony. See id. art. 38.072, § 2(b)(1)(B); Bays, 396 S.W.3d at 581.

Moreover, there is no statutory exception that would allow the State to introduce 

Violet’s outcry by an alternative means based on Garza’s unavailability. See TEX. CODE 

CRIM. PROC. ANN. art. 38.072. Indeed, the Texas Court of Criminal Appeals has rejected 

attempts to introduce an outcry statement by methods other than the live testimony of the 

outcry witness. See Bays, 396 S.W.3d at 582 (“The child-complainant’s own videotaped 

statement does not meet the requirements for being admitted under that statute.”); 

Sanchez v. State, 354 S.W.3d 476, 489 (Tex. Crim. App. 2011) (“Because an Article 

38.072 hearing provides a defendant with an inadequate opportunity to cross-examine an 

outcry witness’s credibility, admitting testimony from an Article 38.072 hearing at a trial 
12

when the witness is unavailable violates the Sixth Amendment.”). If Violet’s own recorded 

statement was inadmissible under Article 38.072, then it stands to reason that Green 

could not use that video as the sole basis for providing outcry testimony. See Bays, 396 

S.W.3d at 582. Simply put, a person who merely watches a video recording of an outcry 

statement is not an outcry witness within the meaning of the statute. See TEX. CODE CRIM.

PROC. ANN. art. 38.072, § 2(a)(3).

Lastly, the trial court’s determination during the preliminary hearing that Green was 

a “reliable” witness was immaterial and misplaced. The purpose of the preliminary hearing 

is to “decide the reliability of an outcry based only on the time, content, and circumstances 

of the statement, leaving the determination of the outcry witness’s credibility to the fact 

finder at trial.” Sanchez, 354 S.W.3d at 489 (emphasis added). For the forgoing reasons, 

we conclude that the trial court abused its discretion when it permitted Green to testify as 

an outcry witness.

D. The Error Was Harmless

Nevertheless, we also conclude that any error in admitting Green’s outcry 

testimony was harmless because Violet and Estrada provided the same or similar 

testimony without objection. See Gibson, 595 S.W.3d at 327. To be clear, Violet provided 

the most detailed account of the abuse, and her testimony alone was enough to render 

the error harmless. See West v. State, 121 S.W.3d 95, 105 (Tex. App.—Fort Worth 2003, 

pet. ref’d) (holding that error in admitting outcry testimony did not influence jury’s verdict 

or had but a slight effect because complainant provided detailed testimony relating to the 

offense). In other words, Green did not testify about any key fact that was not also 
13

provided through Violet’s more comprehensive testimony. As far as a specific 

comparison, all three witnesses testified that Rodriguez touched Violet’s “private area” on 

multiple occasions. Violet and Green both testified that Rodriguez also forced Violet to 

touch his penis several times. Finally, Violet and Estrada testified that the abuse occurred 

regularly over a period of two years, while Green testified that the abuse occurred 

“several” times without specifying the period. On this record, we have fair assurance that 

any error in admitting Green’s outcry testimony did not have a substantial and injurious 

effect on the jury’s verdict. See Barshaw, 342 S.W.3d at 93. Rodriguez’s first issue is 

overruled.

III. EXTRANEOUS OFFENSE EVIDENCE

By his final issue, Rodriguez argues that the trial court erred in admitting the 

testimony of Violet’s father and aunt for two reasons. First, Rodriguez contends that 

“Article 38.37 is unconstitutional, both facially and as applied, because it deprived 

Rodriguez of the presumption of innocence in violation of the Due Process Clause of the 

United States Constitution.” Alternatively, Rodriguez argues that the evidence was

inadmissible under Texas Rule of Evidence 404(b) “because the prejudicial effect of the 

two extraneous offenses substantially outweighed any probative value and led to 

confusion.”

A. Applicable Law

Notwithstanding Rule 404(b), which generally limits the use of extraneous offense 

evidence, Article 38.37 permits the admission of evidence of prior sexual offenses for 

“any bearing the evidence has on relevant matters, including the character of the 
14

defendant and acts performed in conformity with the character of the defendant.” 

Compare TEX. R. EVID. 404(b), with TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b). Thus, 

extraneous offense evidence admitted under Article 38.37 “is, by definition, propensity 

character evidence” that the Legislature has deemed “admissible notwithstanding those 

characteristics.” Harris v. State, 475 S.W.3d 395, 402 (Tex. App.—Houston [14th Dist.] 

2015, pet. ref’d). Before admitting such evidence, the trial court “must” conduct a 

preliminary hearing outside the presence of the jury to “determine that the evidence likely 

to be admitted at trial will be adequate to support a finding by the jury that the defendant 

committed the separate offense beyond a reasonable doubt.” TEX. CODE CRIM. PROC.

ANN. art. 38.37, § 2-a.

Yet, a trial court may exclude evidence that is admissible under Article 38.37 if its 

probative value is “substantially outweighed” by a danger of unfair prejudice, confusing 

the issues, misleading the jury, undue delay, or needlessly presenting cumulative 

evidence. TEX. R. EVID. 403; see TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b) (excepting 

evidence admitted under Article 38.37 from the application of Rules 404 and 405 but not 

Rule 403). However, to trigger a balancing test under Rule 403, the defendant must make 

a timely objection or request. Belcher v. State, 474 S.W.3d 840, 847 (Tex. App.—Tyler 

2015, no pet.) (“When evidence of a defendant’s extraneous acts is relevant under Article 

38.37, Section 2(b), the trial court is still required to conduct a Rule 403 balancing test 

upon proper objection or request.”); see also Killinger v. State, No. 13-17-00016-CR, 2020 

WL 728305, at *4 (Tex. App.—Corpus Christi–Edinburg Feb. 13, 2020, pet. ref’d) (mem. 

op., not designated for publication) (discussing the procedures for admitting evidence 
15

under Article 38.37 and noting that, “[u]pon proper objection, the trial court must also 

conduct a balancing test under Rule 403”). If not, the issue is forfeited and may not be 

raised for the first time on appeal. Lumsden v. State, 564 S.W.3d 858, 898–99 (Tex. 

App.—Fort Worth 2018, pet. ref’d) (declining to address an issue concerning Rule 403 

because appellant failed to preserve it in the trial court); see also Flores v. State, No. 13-

12-00362-CR, 2013 WL 3326982, at *5 (Tex. App.—Corpus Christi–Edinburg June 27, 

2013, no pet.) (mem. op., not designated for publication) (“Because appellant did not 

make a proper rule 403 objection to this testimony at trial, he has waived this argument 

on appeal.”); Hernandez v. State, No. 13-97-675-CR, 1998 WL 34202539, at *3 (Tex. 

App.—Corpus Christi–Edinburg Nov. 12, 1998, no pet.) (not designated for publication) 

(“We hold that appellant failed to object based on rule 403, and has therefore waived this 

argument.”).

B. Rodriguez Failed to Preserve the Issue

As a preliminary matter, the State argues that Rodriguez has not preserved either 

of his complaints about the admissibility of the extraneous offense evidence. Generally, 

a constitutional challenge to a statute, whether facial or as applied, cannot be raised for 

the first time on appeal. See Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App.

2009) (holding that “a defendant may not raise for the first time on appeal a facial 

challenge to the constitutionality of a statute”); Curry v. State, 910 S.W.2d 490, 496 (Tex.

Crim. App. 1995) (holding appellant waived his as-applied challenge to a statute’s

vagueness because he did not specifically object to it as such at trial). The only limited 

exception is when the statute in question “has already been held void.” Smith v. State, 
16

463 S.W.3d 890, 896 (Tex. Crim. App. 2015). Rodriguez does not direct us to any 

authority holding Article 38.37 unconstitutional, and we find none. To the contrary, each

court that has considered various constitutional challenges to Article 38.37, including our 

own, has found it constitutional. See, e.g., Buxton v. State, 526 S.W.3d 666, 687 (Tex. 

App.—Houston [1st Dist.] 2017, pet. ref’d) (holding that Article 38.37 does not violate a 

defendant’s due process rights); Bezerra v. State, 485 S.W.3d 133, 139–40 (Tex. App.—

Amarillo 2016, pet. ref’d) (same); Robisheaux v. State, 483 S.W.3d 205, 213 (Tex. App.—

Austin 2016, pet. ref’d) (same); Harris, 475 S.W.3d at 401 (same); Martin v. State, 176 

S.W.3d 887, 902 (Tex. App.—Fort Worth 2005, no pet.) (same); Brantley v. State, 48 

S.W.3d 318, 329–30 (Tex. App.—Waco 2001, pet. ref’d) (same); Jenkins v. State, 993 

S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref’d) (same); see also Arriaga v. State, 

No. 13-18-00583-CR, 2019 WL 3331637, at *3 (Tex. App.—Corpus Christi–Edinburg July 

25, 2019, pet. ref’d) (mem. op., not designated for publication) (holding that Article 38.37 

does not violate the separation of powers clause of the Texas Constitution); Chaisson v. 

State, No. 13-16-00548-CR, 2018 WL 1870592, at *5 (Tex. App.—Corpus Christi–

Edinburg Apr. 19, 2018, pet. ref’d) (mem. op., not designated for publication) (determining

that Article 38.37 did not violate appellant’s constitutional right to due process). Thus, 

Rodriguez may only raise his constitutional challenges on appeal if he preserved those 

complaints in the trial court. See Karenev, 281 S.W.3d at 434; Curry, 910 S.W.2d at 496.

We have reviewed the record, and Rodriguez did not raise a constitutional 

objection to Article 38.37 when the State offered the testimony of either witness. Likewise, 

he did not object or request a balancing inquiry under Rule 403, and the trial court was 
17

under no obligation to conduct one sua sponte. See Belcher, 474 S.W.3d at 847; see also 

Killinger, 2020 WL 728305, at *4. In fact, during the preliminary hearing, Rodriguez

conceded that Violet’s father and aunt “are allowed to testify under these circumstances, 

especially with notice in advance.” Consequently, he has waived any challenge to the 

admissibility of their testimony. See Karenev, 281 S.W.3d at 434; Curry, 910 S.W.2d at 

496; Lumsden, 564 S.W.3d at 898–99; see also Flores, 2013 WL 3326982, at *5; 

Hernandez, 1998 WL 34202539, at *3. Rodriguez’s second issue is overruled.

IV. CONCLUSION

We affirm the trial court’s judgment.

GINA M. BENAVIDES

Justice

Publish.

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

Delivered and filed on the

4th day of April, 2024.