COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

AURELIANO SANCHEZ GALVAN,

 Appellant, 

v. 

THE STATE OF TEXAS,

 Appellee. 

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§ 

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§ 

No. 08-23-00162-CR

Appeal from the 

327th Judicial District Court

of El Paso County, Texas 

(TC# 2021D01588) 

MEMORANDUM OPINION

A jury found Appellant Aureliano Sanchez Galvan guilty of continuous sexual abuse of a 

child under fourteen years of age. In three issues on appeal, Appellant challenges the trial court’s 

evidentiary rulings. In a fourth issue, he asserts the trial court erred by denying his request for a 

jury shuffle. In his final issue, Appellant asserts the cumulative harm of the trial court’s errors 

affected his substantial rights. For the reasons set forth below, we affirm the trial court’s judgment. 

BRIEF BACKGROUND

D.M.1, the minor complainant in this case, complained that Appellant sexually abused her 

over the span of multiple years at two different homes in which D.M. resided over time. D.M. 

1 To protect a child’s identity, we refer to the child by initials rather than by name. See Tex. R. App. P. 9.10.
2

alleged that Appellant, who was in a relationship with D.M.’s aunt, would visit D.M.’s home, ask 

to take a shower, then enter into whatever bedroom D.M. was in and sexually assault her. In 

addition to D.M.’s testimony, the jury heard from several witnesses, including D.M.’s mother, law 

enforcement officers, and witnesses who testified about extraneous offenses involving Appellant 

and two other young girls. The jury also heard a recording of a jail call between Appellant and his 

wife. Because Appellant does not raise an issue regarding the sufficiency of the evidence to support 

his conviction, we do not discuss the facts in greater detail. Additional facts necessary for 

disposition of his appellate issues are recited in the relevant analysis of each issue below. See Tex. 

R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as 

practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

TESTIMONY OF OUTCRY WITNESSES

In his first issue, Appellant asserts the trial court erred by allowing two witnesses (the 

complainant’s mother and Detective Smith) to testify as outcry witnesses. The State contends 

Appellant did not preserve this issue for our review. 

A. Error preservation

The State argues that to preserve error on the ground that a witness improperly testified as 

an outcry witness, Appellant was required to timely and specifically object and, unless allowed a 

running objection, must continue to object each time the witness offers the improper outcry 

testimony. Beckham v. State, 29 S.W.3d 148, 153-54 (Tex. App.—Houston [14th Dist.] 2000, pet. 

ref’d); see also Johnson v. State, No. 08-05-00012-CR, 2006 WL 2635380, at *4 (Tex. App.—El 

Paso Sept. 14, 2006, pet. ref’d) (not designated for publication) (holding same); Tex. R. App. P. 

33.1 (requiring timely objection to trial court).
3

(1) Background

The trial court conducted a pretrial outcry hearing at which the State presented the 

testimony of Aurora (the complainant’s mother) and Detective Smith. After their testimony, 

defense counsel argued the State did not satisfy its burden to prove that Aurora and Detective 

Smith “were the first adults to whom the child . . . described the incident that happened[.]” More 

specifically, defense counsel asserted that neither Aurora nor Detective Smith could pinpoint the 

specific event to which they were the outcry witness. The trial court found both witnesses reliable 

and allowed them to testify as outcry witnesses at trial. On the morning of trial, Appellant filed a 

motion to reconsider and a renewed objection to the designation of Aurora and Detective Smith as 

outcry witnesses. After opening statements, the trial court heard the renewed objection but did not 

alter its ruling. When called as witnesses before the jury, both Aurora and Detective Smith testified 

about what they were told by D.M. 

The complainant, D.M., testified the sexual abuse began when she was approximately six 

or seven years old. 2 In 2020, D.M. made her first statement to her mother, Aurora, who 

immediately called the police. D.M. was interviewed by Detective Claudia Azar at the police 

station.3 Later, Detective Lourdes Smith was assigned the case and she also interviewed D.M. The 

State gave notice of its intent to call outcry witnesses under seal and the document is not included 

in the record on appeal. However, on appeal, Appellant does not contend he was unaware of the 

State’s intention to call Aurora and Detective Smith as outcry witnesses at trial.

2 D.M. was born on November 21, 2005. Trial commenced in early 2023.

3 Detective Azar was a patrol officer when D.M. gave her statement at the police station. By the time of trial, she was 

a detective. 
4

(2) Analysis

Texas Rule of Evidence 103(b) provides that “[w]hen the court hears a party’s objections 

outside the presence of the jury and rules that evidence is admissible, a party need not renew an 

objection to preserve a claim of error for appeal.” Tex. R. Evid. 103(b); see also Lopez v. State, 

253 S.W.3d 680, 684 (Tex. Crim. App. 2008) (holding that to preserve error “an objection must 

be made each time inadmissible evidence is offered unless the complaining party obtains a running 

objection or obtains a ruling on his complaint in a hearing outside the presence of the jury”). Here, 

Appellant raised his objections to Aurora and Detective Smith before trial and obtained a ruling 

denying his objections. Therefore, we conclude that he preserved his complaint for our review. 

Accordingly, we address the merits of his complaint.

B. Proper outcry witness

Texas Code of Criminal Procedure Article 38.072 “creates a statutory exception to the 

hearsay rule and allows the first adult to whom a child makes a statement describing a sexual 

assault to testify to the child’s outcry, if the statute’s provisions are met.” In re C.E.S., 400 S.W.3d 

187, 192 (Tex. App.—El Paso 2013, no pet.); see also Tex. Code Crim. Proc. Ann. art. 38.072

(Hearsay Statements of Certain Abuse Victims). “Procedurally, the State cannot introduce the 

statement until the trial court holds a hearing outside the presence of the jury to determine whether 

the statement is reliable based on the time, content, and circumstances of the statement.” Kappes 

v. State, No. 08-22-00095-CR, 2023 WL 1972015, at *4 (Tex. App.—El Paso Feb. 13, 2023, pet. 

ref’d.); see Tex. Code Crim. Proc. Ann. art. 38.072, § 2-a(b)(2). “We review a trial court’s 

determination of whether an outcry statement is admissible under Article 38.072 for an abuse of 

discretion.” Kappes, 2023 WL 1972015, at *4.
5

“The proper outcry witness is not the first adult to whom the child made the outcry, but 

instead the first adult to whom the child described the abuse in some discernible way.” C.E.S., 400 

S.W.3d at 192. The child’s outcry “must be more than words which give a general allusion that 

something in the area of child abuse was going on.” Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. 

App. 1990) (en banc). 

In picking the particular wording of the “first person” requirement, the legislature 

was obviously striking a balance between the general prohibition against hearsay 

and the specific societal desire to curb the sexual abuse of children. . . . The portion 

of the statute catering to the hearsay prohibition demands that only the first person 

is allowed to testify. But the societal interest in curbing child abuse would hardly 

be served if all that first person had to testify to was a general allegation from the

child that something in the area of child abuse was going on at home. Thus . . . any 

statement that arguably relates to what later evolves into an allegation of child abuse 

against a particular person will [not] satisfy the requisites of [Article 38.07]. 

Id. To be the outcry witness, the victim must have described the offense to that witness. Id. In other 

words, “the specificity requirement is generally met when a victim sufficiently describes the how, 

when, and where of the abuse.” Kappes, 2023 WL 1972015, at *5 (citation omitted).

(1) Aurora’s testimony

Appellant asserts the trial court erred by allowing Aurora to testify as an outcry witness 

because the statement D.M. made to Aurora was too vague to qualify as a “statement about the 

offense.”

During Aurora’s direct examination, she was asked by the State about the day D.M. made 

her statement: 

Q. What happens to [D.M.] when she does something she’s not supposed to and 

she gets punished? What’s her punishment? 

A. I don’t let her go out, and I take her cell phone away.

Q. Now, when you asked her if she had done her chores, what did she say?
6

A. That she had done it, but that I was asking her to do too much.

Q. What happened next? 

A. I spoke to her strongly, and that’s when she told me what had happened to her. 

She told me that I did not understand her. 

Q. What did you observe in her behavior when she was telling you that?

A. She would cry. 

Q. What did you say in response?

A. I just asked her why she had not told me about this, and I hugged her.

Q. What did she tell you in detail, please? 

A. That she was afraid to tell me because he had told her not to tell anybody 

because I did not have my residence and I could be deported. 

Q. What did [D.M.] tell you the defendant did to her?

A. I’m sorry. I did not understand the word. 

Q. It’s okay. What did [D.M.] tell you that the defendant did to her? [Emphasis 

added]

A. She has not wanted to tell me. She just told me that he had – he had violated 

her, but that was it. [Emphasis added]

Q. And what was your reaction when she told you that he had violated her? 

A. I felt impotent.

. . .

Q. After [D.M.] told you this, what did you do? 

A. Support her, be with her.

Q. And you said earlier you went to the police? 

A. Yes. We went to file a complaint.
7

On cross-examination, Aurora was asked about the statement she gave to Detective Smith: 

“you stated that [D.M.] told you that [Appellant] had raped her when she was 6 or 7 years old.” 

Aurora replied, “yes.” The statement itself was not admitted into evidence.

D.M.’s comments to Aurora did not include specific details; she did not describe the “how, 

when, and where” of the abuse. Calderon v. Texas, 2021 WL 5027754 (Tex. App.—El Paso 2021, 

pet. ref’d) (not designated for publication); see also Smith v. State, 131 S.W.3d 928, 931 

(Tex. App.—Eastland 2004, pet. ref’d) (concluding that “child’s statement to his mother that 

[Appellant] had been performing oral sex on him did not relay any specific details about the 

charged offense”).

4 Therefore, we conclude the trial court erred by allowing Aurora to testify as 

an outcry witness.

(2) Appellant’s renewed objection to Detective Smith’s testimony

Only Aurora and Detective Smith testified at the pretrial outcry hearing. On the morning 

of trial, Appellant filed a motion to reconsider and a renewed objection to the designation of Aurora 

and Detective Smith as outcry witnesses. In his renewed objection to both Aurora and Detective 

Smith, Appellant stated as follows: 

During the course of trial preparation, it became apparent to defense counsel that 

D.M. gave a lengthy interview about her alleged sexual abuse to the first police 

officers she encountered, El Paso Police Officers Claudia Azar (3245) and 

Dominique Lopez (3409), on August 30, 2020. . . . This occurred when [Aurora] 

did a walk-in report at the Pebble Hills Regional Command Center and they spoke 

to patrol officers. Wherefore, [defense counsel] respectfully renews his objection 

to the State’s designation of Detective Lourdes Smith as an appropriate outcry 

witness and that any statements made to Detective Smith by D.M. only be allowed 

for impeachment purposes and not substantive evidence under article 38.072.

4 During opening statements, defense counsel alluded to the outcry to Aurora by telling the jury that D.M. told her 

mother, “I’ve been sexually assaulted by [Appellant].” On appeal, the State contends this opening statement “opened 

the door” to Aurora’s testimony; therefore, the trial court did not err by allowing her to testify as an outcry witness. 

We disagree. Prior to appellant’s opening statement, the trial court had already ruled Aurora to be reliable and allowed 

her to testify as an outcry witness at trial. 
8

The trial court considered the objection but did not alter its ruling. On appeal, Appellant 

asserts the trial court erred by allowing Detective Smith to testify as an outcry witness because the 

offenses D.M. reported to Detective Smith were not separate and distinct from the offenses D.M. 

previously reported to Detective Azar.

“Outcry testimony is event-specific not person-specific and, as such, multiple outcry 

witnesses may testify when the outcry statements are about different events and not a repetition of 

the same events.” C.E.S., 400 S.W.3d at 192; see also Lopez v. State, 343 S.W.3d 137, 140 

(Tex. Crim. App. 2011) (“Hearsay testimony from more than one outcry witness may be 

admissible under article 38.072 only if the witnesses testify about different events. There may be 

only one outcry witness per event.”). “If the child victim first described one type of abuse to one 

outcry witness, and first described a different type of abuse to a second outcry witness, the second 

witness could testify about the different instance of abuse.” Tear v. State, 74 S.W.3d 555, 559 

(Tex. App.—Dallas 2002, pet. ref’d). Therefore, we compare the trial testimony of Detective Azar 

to that of Detective Smith to determine whether the trial court abused its discretion by allowing 

Detective Smith and Detective Azar to testify about D.M.’s statements.

5

(3) Detective Azar’s testimony

On August 30, 2020, Detective Claudia Azar was a patrol officer when she met with D.M. 

and Aurora at the police station on the day they came to report the assault. Detective Azar testified 

D.M. told her the following: 

So what she told us was they lived at 426 Pendale with her mother and her siblings. 

[Appellant] is her aunt’s spouse. So he would often go visit them and would ask to 

take a shower. So they were comfortable to let him take a shower at their residence. 

So she stated that the first time, she was asleep in her mother’s bedroom and, when 

5 Detective Azar’s written statement was neither admitted into evidence when Appellant renewed his objection to 

Detective Smith’s testimony nor when Detective Azar testified at trial. Therefore, for the purpose of our analysis, we 

compare the trial testimony of both detectives.
9

she woke up, he was standing next to her with a T-shirt on, exposing his genitals. 

At that time he tried to take off her clothes. She told him no and tried to stop him 

by kicking him. And then he ended up mounting her and was able to take off her 

clothes and put his erect penis into her. She told us that this happened about five to 

six times . . . for about two years.

. . .

Then they moved to 12341 Tierra Inca. Two years after they moved to Tierra Inca, 

he ended up visiting them. Again, she was–he asked to take a shower. She was in 

the–in Mother’s room, and he attempted again to try and assault her, but she–she 

was able to kick him off, so he was unsuccessful. She stated that it happened another 

time at the same residence at Tierra Inca but was unsuccessful that time as well.

Detective Azar said that when she was first dispatched, it was for the offense of indecency 

with a child, but after speaking with D.M., she classified the offense as sexual assault. 

On cross-examination, Detective Azar said D.M. told her the abuse started when she was 

nine years old when she lived in a house located at 426 Pendale. D.M. told her that Appellant 

“covered her mouth and grabbed her legs,” “he was able to stick his penis inside of her,” and this 

“happened five or six times.” D.M. did not tell Detective Azar that Appellant touched her with his 

hand. D.M. told Detective Azar that Appellant tried twice to take off her clothing and sexually 

assault her when she lived at the Tierra Inca house, but she was able to fight him off.

(4) Detective Smith’s testimony

Detective Lourdes Smith testified she was assigned the aggravated sexual assault case on 

August 31, 2020, and she met with D.M. on September 10, 2020. Detective Smith testified D.M. 

told her the following: 

The first time that she told me something happened, she said that she was 9 years 

old. [Appellant] used to go shower at their house, and he used to use the same–the 

restroom that was inside of her mom’s room, which she would fall asleep in. And 

she said that the first time that it ever happened, she was asleep in there and he had 

taken a shower. He came out, and she woke up to him exposing himself, his penis. 

And then she said she got up from the bed because she was scared and he put her 

back on the bed and–the way she said it, she said that he was able to get inside her. 
10

. . . And she did say that he put his dick in her vagina and she couldn’t scream 

because he did cover her mouth. . . . At 426 Pendale, it happened–she said five or 

six times. . . . She said that at that house she saw white stuff on the bed one time.

She said stuff did happen there at 12341 Tierra Inca. She said she was 11 or 12 

when something happened, and she said it happened two times and they were the 

same. She said the only difference between those two times was that one time there 

was white stuff coming out of his penis.

. . .

Yes. So she said that in [t]his house she actually did have her bedroom, but the 

bedroom was next to the restroom and [Appellant] would also ask Mom, “Hey, can 

I shower?” same as the other house. And in this bedroom she was able to close the 

door, but it wouldn’t lock. So she would actually put a shoe, and he would just 

pretty much force it off and go inside.

. . .

So pretty much, when he came inside, he looked at her and he laughed. And then 

he told her that if she screamed, that something was going to happen to her mom. 

And he–that he said, quote/unquote, “You already know what to do.”

And she sat up–as soon as he walked in, I guess because she got startled, she sat 

up, and he pulled her toward him and he penetrated her vagina with his penis.

. . .

She said that he did penetrate her with his penis and then he pulled his penis out 

and he inserted three fingers in her vagina. And this is when she did see his–the 

white stuff come out of his penis. 

Detective Smith said that according to D.M., D.M. had been continuously raped from 2014 

through 2017. 

(5) Analysis

D.M.’s testimony concerned assaults at two addresses. Her detailed statements to both 

detectives about what happened at the Pendale residence involved the same event (involving 

Appellant exposing his genitals and penetrating D.M. with his penis). We therefore conclude the 
11

trial court erred by allowing both detectives to testify about the same event at the Pendale 

residence.

However, the testimony regarding what happened at the Tierra Inca residence differed. 

D.M. told Detective Azar Appellant attempted to assault her, but she gave no details. D.M.’s 

statement that Appellant tried unsuccessfully to assault her amounted to no more than a general 

allusion or insinuation that a second sexual assault had occurred. In contrast, D.M. first provided 

details about penetration occurring at the Tierra Inca residence during Detective Smith’s interview.

D.M. told Detective Smith that Appellant “penetrate[d] her with his penis and then he 

pulled his penis out and he inserted three fingers in her vagina.” Thus, the trial court could have

concluded that D.M’s first outcry regarding both digital and penile penetration occurring at the 

Tierra Inca residence did not occur until her interview with Detective Smith, when she provided

more than a general insinuation of sexual abuse. See Polk v. State, 367 S.W.3d 449, 453 

(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (complainant made detailed outcry to her adult 

brother about Appellant’s contact with her vagina; complainant did not reveal to her brother that 

Appellant also had touched her anus in the same encounter; complainant first offered details about 

Appellant’s contact with her anus during her subsequent conversation with her mother); Josey v. 

State, 97 S.W.3d 687, 693 (Tex. App.—Texarkana 2003, no pet.) (concluding that mother was 

proper outcry witness for act of oral contact, but forensic interviewer was proper outcry witness 

for act of digital penetration).

Because D.M. first described two different types of abuse—digital and penile penetration 

at the Tierra Inca residence—to a second outcry witness (Detective Smith), the second witness 

could testify about the different types of abuse. See Tear, 74 S.W.3d at 559. Therefore, we 

conclude the trial’s decision to allow Detective Smith to testify was not an abuse of discretion. 
12

C. Harm analysis

Having found that the trial court erred in allowing Aurora to testify as an outcry witness

and in allowing both detectives to testify as outcry witnesses about what happened at the Pendale 

residence, we must conduct a harm analysis to determine whether the trial court’s errors affected 

Appellant’s substantial rights. See Tex. R. App. P. 44.2(b) (“Any other error, defect, irregularity, 

or variance that does not affect substantial rights must be disregarded.”). The erroneous admission 

of hearsay testimony under Article 38.072 is non-constitutional error. See Nino v. State, 223 

S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Improper admission of 

evidence is not reversible error if the same or similar evidence is admitted without objection at 

another point in the trial. “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.); see also West v. State, 121 S.W.3d 

95, 105 (Tex. App.—Fort Worth 2003, pet. ref’d) (holding error in admitting outcry testimony did 

not influence jury’s verdict or had but a slight effect because complainant provided detailed 

testimony regarding the offense); Thomas v. State, 1 S.W.3d 138, 142 (Tex. App.—Texarkana 

1999, pet. ref’d) (holding error in determining child complainant’s mother was proper outcry 

witness but admitting her testimony about complainant’s statements of sexual abuse by defendant 

was harmless where record was replete with testimony from witnesses other than mother 

concerning complainant’s statements about offense); Tex. Code Crim. Proc. Ann. art. 38.07(a), 

(b)(1) (conviction is supportable by uncorroborated testimony of victim 17 years of age or 

younger).
13

We first note, as stated above, that D.M.’s statement to Aurora did not include specific 

details, i.e., the “how, when, and where” of the abuse. On the other hand, D.M. testified at trial 

without objection to details of the abuse. D.M. testified that while at the Pendale residence, 

Appellant exposed his “private part” to her and touched her vagina with his fingers under her 

clothes while he held himself and moved his hand “back and forward.” She said this happened 

more than ten times, but she could not remember how old she was. D.M. stated she was about eight 

years old when the family moved to the Tierra Inca residence. D.M. said Appellant would expose 

himself, touch “her privates” with his hand under her clothes, take her clothes off, and “put his 

private part in” her. She said he raped her more than once, but she could not remember how many 

times. In addition to D.M.’s testimony, Detective Azar testified without objection about what D.M. 

told her. After examining the record as a whole, we conclude the trial court’s error in admitting 

Aurora’s testimony and in allowing both detectives to testify about the same events at the Pendale 

residence did not have a substantial and injurious effect or influence in determining the jury’s

verdict.

D. Conclusion

For the reasons stated above, we overrule Appellant’s first issue.

CROSS-EXAMINATION OF D.M.

In his second issue, Appellant assertsthe trial court erred when it prevented him from crossexamining D.M. about the circumstances leading up to and surrounding her outcry to Aurora. 

Appellant contends the purpose of the questioning was to explore D.M.’s motives for making her 

outcry when she did.
14

A. Background

Before trial, the court granted the State’s motion in limine regarding “[a]ny evidence of 

previous sexual misconduct on the part of any witness for the State of Texas until such time as the 

State of Texas has had an opportunity to ascertain whether such evidence is in violation of Texas 

[Rule of Evidence] 412.” During opening statements, defense counsel informed the jury as follows:

[The State] told you that [D.M.]–she’s 17 years old. She’s going to turn 18 this 

year. Back in 2020, when she was 15, she was getting into a lot of trouble. She was 

being disrespectful at home. She was–

The State interrupted with an objection that “[t]his was covered in our motion in limine,” and the 

trial court instructed counsel to inform the jury only “that there was a motivation or reason why 

[D.M.] made the outcry. And leave it at that and they can fill in the blanks later when you provide 

them with evidence[.]” Defense counsel then told the jury,

You’re going to hear that [D.M.] and her mother were having issues and that they 

had a very serious conversation about these issues. And during that conversation, 

[D.M.] told her mom, “You don’t know what I’ve been through. You don’t know 

about my life,” and that her mom–and at that point, [D.M.] told her mother, “I’ve 

been sexually assaulted by [appellant],” that her mom–they had a brief 

conversation–that her mom took her to the police station to report it. And that 

happened in August of 2020. All right?

During Aurora’s cross-examination, defense counsel asked Aurora about the circumstances 

under which D.M. made her outcry:

Q. Now, what was this argument about? 

A. Because I had punished her and I took away the cell phone.

Q. Okay. And that’s what’s on your statement [to the police]; right? That you had 

grounded her and you had taken her cell phone away from her; right?

A. Yes. 

Q. Why was the reason – what was the reason that you took [D.M.’s] cell phone 

away from her?
15

A. Because she did not do the housework that I had told her to. 

Q. Okay. Now, you – you were present when [D.M.] provided her statements to 

the detectives; correct? 

A. Yes. Everything was spoken in English.

Q. Okay. Well, isn’t it true that the reason that you actually grounded [D.M.] was 

because she was talking to a boy?

. . .

Q. So the real reason that you grounded [D.M.] is because she was talking to a 

boy; right? 

A. I don’t remember.

Q. Okay. So you don’t remember that in that occasion [D.M.] told you that a guy 

tried to grab her . . . [State’s objection overruled]

Q. She told you that a guy tried to grab her and that they both started talking about 

sex. You don’t remember [D.M.] telling you that? 

A. I don’t remember. 

Q. And you don’t remember that that’s when you got very upset with her for 

talking about sex with that guy? 

A. It was because she did not do the housework.

. . .

Q. Okay. So let me rephrase the question, because I’m not asking you if you 

understand something during the interview. I’m asking you: If [D.M.] say 

[sic] that you had got mad at her for talking about sex with a – another boy, 

that is not true or is that true? 

A. I don’t remember.

Before defense counsel cross-examined D.M., the trial court revisited its earlier decision 

about questioning D.M. about the circumstances leading up to her outcry. Defense counsel stated:
16

One of them [referring to the State’s motion in limine] is any, I guess, sexual 

misconduct and also bad acts and all that. So I anticipate that when I ask around 

the–I guess the argument that the complaining witness had with her mom, the 

reason for that is because she was caught talking about sex with another male 

individual.

The court ruled:

Yeah. I don’t–I’m not going to allow that. I mean, at this point, I think the rule on 

that is pretty clear. And to suggest that a teenager who is still underage, who is the 

alleged victim in a case like this, any kind of sexual impropriety, even if they were 

consensual matters, it just would be wholly inappropriate. I’m not going to allow 

it.

Defense counsel responded:

And, Your Honor, I would like to note my objection for the record. We’re basing 

this on Rule 412. And it’s correct, there is a specific prohibition that in this type of 

cases [sic] any evidence of the victim’s past sexual behavior or any specific 

instances of the victim’s past sexual behavior are not allowed, but it has a bunch of 

exceptions as well. And one specific exception is if it relates to the victim [sic]

motive or bias. And I think this is what [co-defense counsel] was trying to get on 

his opening statement. I think there’s [a] strong relationship between the time that 

she chose to come out with this. It can be–the jury can determine that this–that the 

time that she chose to make these allegations were very convenient while she was 

getting in trouble for talking about sex with another individual and to deviate the 

attention or whatever consequences were going to be for the conduct that she was 

being engaged with [sic] at the time.

B. Error preservation

We first address the State’s contention that Appellant did not preserve this issue for our 

review because he failed to make an offer of proof as to the substance of D.M.’s testimony. Texas 

Rule of Evidence 103 details how to properly make an offer of proof to excluded testimony at trial:

“[a] party may claim error in a ruling to admit or exclude evidence only if the error affects a 

substantial right of the party and, . . . if the ruling excludes evidence, a party informs the court of 

its substance by an offer of proof, unless the substance was apparent from the context.” Tex. R. 

Evid. 103(a)(2). “The offer of proof may be in question-and-answer form or in the form of a 
17

concise statement by counsel.” Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009). 

However, Rule 103 is distinct from Texas Rule of Appellate Procedure 33.1, which imposes the 

requirement of making a specific request, objection, or motion stating “the grounds for the ruling 

that the complaining party sought from the trial court with sufficient specificity to make the trial 

court aware of the complaint, unless the specific grounds were apparent from the context” to 

preserve error on appeal. Tex. R. App. P. 33.1(a)(1)(A).

In Holmes v. State, the Court of Criminal Appeals “recognized a distinction between the 

general rule in Rule 103(a)(2) and the case in which the defendant is not permitted to question a 

State’s witness about matters that might affect the witness’s credibility.” 323 S.W.3d at 168.

In the latter case, the defendant need not show what his cross-examination of the 

witness would have affirmatively established; he must merely establish what 

general subject matter he desired to examine the witness about during his crossexamination and, if challenged, show on the record why such should be admitted 

into evidence. In such a case the trial court’s ruling has prevented a defendant from 

questioning a State’s witness about subject matters which affect the witness’s 

credibility, that is, matters which might show malice, ill feeling, ill will, bias, 

prejudice, or animus. The distinction between these kinds of cases may have been 

blurred by the similarity of language in two expressions: the credibility of a 

witness’s testimony and a witness’s credibility. The former expression refers to the 

substance of the evidence; the latter refers to personal characteristics of the witness.

Id. The Court then clarified the exception:

[W]here the defendant, in cross-examining a State’s witness, desires to elicit subject 

matters that tend to impeach the witness’s character for truthfulness–for example, 

to show malice, ill-feeling, ill-will, bias, prejudice, or animus on the part of the 

witness toward the defendant–in order to preserve the issue for appellate review, he 

is not required to show that his cross-examination would have affirmatively 

established the facts sought, but merely that he desired to examine the witness with 

regard to those specific subject matters that tend to impeach the witness during his 

cross-examination.

Id. at 170.
18

In this case, Appellant did not make an offer of proof under Rule 103(a)(2). However, 

pursuant to Rule 33.1(a)(1)(A), he notified the trial court of his desire to cross-examine D.M. about 

the circumstances of her argument with her mother, which in turn led to D.M.’s outcry. Appellant 

explained his line of questioning was not meant to violate Rule 412’s prohibition against eliciting 

evidence of D.M.’s past sexual behavior. See Tex. R. Evid. 412(a)(2) (“specific instances of a 

victim’s past sexual behavior” “is not admissible in a prosecution for sexual assault, aggravated 

sexual assault, or attempt to commit sexual assault or aggravated sexual assault”). Instead, he 

sought to elicit evidence under the exception to Rule 412(a)(2)—testimony about why she made 

the outcry when she did—for the purpose of establishing her motive for the outcry. See Tex. R. 

Evid. 412(b)(2)(C) (“Evidence of specific instances of a victim’s past sexual behavior is 

admissible if . . . the evidence . . . relates to the victim’s motive or bias[.]”). We conclude that 

Appellant was not attempting to challenge “the credibility of” D.M.’s testimony by exploring her 

past sexual behavior (the substance of the evidence). See Holmes, 323 S.W.3d at 170. Instead, 

Appellant’s attempted scope of questions was aimed at D.M.’s credibility as a witness (the 

“personal characteristics of the witness”). Id. at 169 Therefore, we conclude that Appellant 

preserved his issue for our review pursuant to Texas Rule of Appellate Procedure 33.1.

Accordingly, we next consider the merits of his complaint.

C. Did the trial court err

“The scope of appropriate cross-examination is necessarily broad.” Carroll v. State, 916 

S.W.2d 494, 497 (Tex. Crim. App. 1996). A defendant may cross-examine a witness on any subject 

“reasonably calculated to expose a motive, bias or interest for the witness to testify.” Id. By 

limiting the cross-examination of D.M. regarding her possible motive for making her outcry to her 

mother, the trial court denied the jury the thrust of Appellant’s defense theory—that D.M. had a 
19

motive to fabricate her outcry against him—thus depriving the jury of the ability to make an 

informed decision regarding the weight to accord D.M.’s testimony. Therefore, we conclude the 

trial court erred by limiting Appellant’s cross-examination of D.M. We next consider whether 

Appellant was harmed by the error.

D. Harm analysis

For the first time on appeal, Appellant asserts his constitutional right to confront a witness 

was violated and this court should apply a three-prong test to determine harm. See Shelby v. State, 

819 S.W.2d 544 (Tex. Crim. App. 1991) (en banc) (applying three-prong harm analysis to violation 

of Confrontation Clause). 6 However, Appellant did not raise an objection based on the 

Confrontation Clause before the trial court. The trial court considered Appellant’s argument under 

Rule of Evidence 412, not the Constitution; thus, Appellant has not preserved his constitutional 

complaint for our review. See Merrick v. State, 567 S.W.3d 359, 369 (Tex. App.—Ft. Worth 2018, 

pet. ref’d) (holding same). We therefore evaluate this error as nonconstitutional and evaluate harm 

based on whether it affected appellant’s substantial rights.

Nonconstitutional error that does not affect an accused’s substantial rights is harmless and 

must be disregarded. Tex. R. App. P. 44.2(b). Substantial rights are not affected if the Court, based 

on the record as a whole, has a fair assurance that the erroneous exclusion of evidence either had 

no influence or only a slight influence on the jury. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.

6 The three prongs of the test are as follows. First, the appellate court must assume that the damaging potential of the 

cross-examination was fully realized. Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991) (en banc). Second, 

with that assumption in mind, the appellate court must review the error in connection with the following factors: (1) 

the importance of the witness’s testimony in the prosecution’s case; (2) whether the testimony was cumulative; (3) the 

presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the 

extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution’s case. Id. Third, in 

light of the first two prongs, the appellate court must determine whether the error was harmless beyond a reasonable 

doubt. Id.
20

App. 2002). In making our assessment, we consider everything in the record, the nature of the 

evidence supporting the verdict, the character of the alleged error, and how it relates to other 

evidence in the record. Id. We also may consider the jury instructions, the State’s theory and any 

defensive theories, closing arguments, and voir dire, if applicable. Id.

During opening statements, defense counsel reminded the jury that they would be asked to 

convict Appellant based on the testimony of a single witness—D.M.—and her testimony would 

“not add up,” would “not make sense,” would “not be corroborated,” and there were “serious 

discrepancies” between D.M.’s two statements to the police. Regarding the outcry to her mother, 

the trial court did not allow defense counsel to tell the jury D.M. made the outcry because D.M. 

was getting into trouble.7 Instead, counsel told the jury D.M. and her mother “were having issues” 

and “they had a very serious conversation about these issues.” Appellant’s defense, therefore, 

rested on challenging D.M.’s credibility, which he did by cross-examining D.M. about her outcry 

to her mother and her two statements to the police.

8

On direct examination, D.M. testified that Appellant “raped” her on more than one 

occasion “by put[ting] his private part in” hers. When she made the general outcry to her mother, 

they went to the police station the next day, and she remembered giving two statements about 30

days apart.

9 On cross-examination, defense counsel asked D.M. about discrepancies between her 

trial testimony and the statements and discrepancies between the two statements. Despite being 

7 Defense counsel asked the trial court if he could “say that [D.M.’s] mom confronted her and that’s why she said that 

she had been raped.” The court replied, “No. Because then we start getting–I mean, you can still accomplish what you 

need to accomplish by saying there were certain things going on. You’ll hear about it and you’re going to understand 

the motivation why she did what she did. Obviously, in your words, but along those lines.” 

8 Defense counsel also questioned other witnesses for the State about the discrepancies in D.M.’s statements.

9 Then-Officer Claudia Azar took the first statement from D.M. at the police station in August 2020. Detective 

Lourdes Smith took D.M.’s second statement in September 2020. D.M. was fourteen years old at the time.
21

given leeway to ask D.M. about “certain things going on” with Aurora as the motivation for D.M.’s 

outcry to her mother, defense counsel did not ask D.M. about any “issues” or any “very serious 

conversation [with her mother] about these issues.”

Defense counsel asked Aurora about the outcry, “I’m asking you: If [D.M.] say [sic] that 

you had got mad at her for talking about sex with a–another boy, that is not true or is that true?” 

Aurora responded that she did not remember. During closing arguments, defense counsel again 

reminded the jury that D.M.’s story “evolved.” Counsel also spent a significant portion of his 

closing arguments walking the jury through the inconsistencies in D.M.’s statements to the police.

Our review of the record reveals that Appellant challenged D.M.’s credibility in a number 

of ways. Therefore, based on the record as a whole, we have a fair assurance the erroneous 

exclusion of evidence had, at best, only a slight influence on the jury. Accordingly, we overrule 

Appellant’s second issue.

JAIL CALL

In his third issue, Appellant asserts the trial court erred when it admitted into evidence a 

recording of a Spanish-language telephone call between him and his wife (Mercedes) while he was 

incarcerated.

A. Background

During trial, the court heard defense counsel’s objections to the State’s offer of the 

recording and translation on various grounds, including that the call did not satisfy the 

requirements of Texas Code of Criminal Procedure 38.37 and the call was prejudicial.

10 The court 

admitted the call and translation into evidence. 

10 Appellant also objected that the call was not relevant and was hearsay within hearsay, violated his right of

confrontation as to the circumstances surrounding the call or the veracity of the allegations made in the conversation, 

and the translation of the call differed from what was said on the call. Appellant does not argue these points on appeal.
22

The audio of the call, which is in Spanish, was played for the jury. The English translation 

of the call reveals Mercedes told Appellant that her daughter, S.C., told her the following: 

Well, [S.C.] told me that, she couldn’t stand it anymore, but she said, “He never did 

anything to me, mom. He never touched me.” She said, “I know that he is going to 

tell you that it’s a lie. I-I never told you. Not out of fear.” She said, “simply because 

you weren’t going to believe me.” And of course I do believe her. I do believe my 

daughter. That, she told me that-that you, ever, since she was young, she said, “I 

was still with Alonso, mom.” She said, “and when he would come back drunk–he 

never touched me. He never did anything to me.” She said[] “But every time that 

he’d come back drunk,” . . . “he would masturbate in front of me.”

When Appellant denied S.C.’s allegation, Mercedes told him not to deny it because she had 

“caught” him. Mercedes then told Appellant,

[S.C.] said, “and he’s going to tell you that it’s not true, that he was drunk.” She

said, “But he would always do that. He would masturbate in front of me when you 

weren’t in the house because he was a little drunk.” She said, “But, he wasn’t 

drunk.” . . . “Because he would just sense that you were going to go out or that you 

were on your way home.” I said, “Why didn’t you ever tell me?” She said, “Because 

. . . you weren’t going to believe me. It already happened–this is what happened 

and I didn’t want to hurt you more.” And you see, how much it hurt me, sweetheart. 

Wasn’t I enough woman for you?

Appellant responded,

Well/no–yes. Well/no–well/no–yes–yes–yes–yes. I don’t–don’t have anything to 

say about that. But that about–[S.C.], yes, yes, I remember now, honey, about–

about that time. Yes. Yes–yes–yes. Because yes, I don’t know what more or less 

happened, and okay. But yes, well, you are right. Uh huh . . . Yes, you are right 

about that, honey.

Mercedes told Appellant, “the thing . . . about [D.], the thing about [L.], you can tell me 

because they’re my nieces. But, about my daughter, honey, it hurt me.” Appellant replied,

Yes, well, well/no, that time, honey, I do–do remember. Yes, you are right, but I 

don’t . . . know. I don’t know. Like I told you, I don’t know what . . . happened to 

me. If I got frustrated or I don’t know. What can I say.

Regarding whether there were other incidents involving S.C., Mercedes told Appellant, 

“[i]t wasn’t only that time, sweetheart, yes, there were several times. And it was ever since she . . 
23

. was twelve years old.” Appellant responded, “No–no–no–no. What then? No–no. No, please no. 

No–no–no–no.”

When Appellant said he would call her again, Mercedes told him not to call until he had 

the courage to tell the truth, to which Appellant responded, “Well I told you that, it’s . . . only that 

time” and “I just remember about that time . . . [n]othing else.”

On appeal, Appellant contends the trial court erred in admitting the call because (1) the 

State failed to prove up the extraneous offense purportedly discussed in the recording under Code 

of Criminal Procedure Article 38.37, (2) the State did not prove S.C. was younger than 17 years 

old at the time of the alleged extraneous offense, (3) admitting the portions of the call that he 

adopted was substantially more prejudicial than probative, and (4) he was harmed by the error.

B. Article 38.37

Texas Rule of Evidence 404(b) prohibits “[e]vidence of a crime, wrong, or other act . . . to 

prove a person’s character in order to show that on a particular occasion the person acted in 

accordance with the character.” Tex. R. Evid. 404(b)(1). However, notwithstanding Rule 404, 

Article 38.37 provides that “evidence that the defendant has committed a separate offense 

described by Subsection (a)(1) [offenses “against a child under 17 years of age”] or (2) [offenses 

“against a person younger than 18 years of age”] may be admitted in the trial of an alleged offense 

described by Subsection (a)(1) or (2) for any bearing the evidence has on relevant matters, 

including the character of the defendant and acts performed in conformity with the character of the 

defendant.” Tex. Code Crim. Proc. Ann. art. 38.37 § 2(b); Romano v. State, 612 S.W.3d 151, 158 

(Tex. App.— Houston [14th] 2020, pet. ref’d) (holding Article 38.37 “applies to certain types of 

sex-based offenses” against children). Before such evidence may be introduced, the trial court 

must conduct a hearing outside the jury’s presence to “determine that the evidence likely to be 
24

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

separate offense beyond a reasonable doubt.” Id. § 2-a. “Adequate under section 2-a means legally 

sufficient.” Romano, 612 S.W.3d at 159. “If the statutory requirements of article 38.37 are met, 

evidence that ordinarily would be inadmissible under rule 404(a)(1) becomes admissible.” Id. at 

158.

On appeal, the parties disagree as to whether Appellant “adopted” S.C.’s allegations against 

him. The State asserts that based on Appellant’s admission during the call to having committed 

the extraneous act of masturbating in front of Mercedes’s daughter, the jury could find beyond a 

reasonable doubt that he committed this act; therefore, Article 38.37, § 2-a is satisfied. Appellant 

counters that he never admitted to committing any extraneous offense. Appellant’s argument on 

appeal is slight at best; however, in the interest of justice we will construe his argument as 

contending S.C.’s allegation was hearsay and therefore could not be used as evidence to satisfy 

Article 38.37, § 2-a.

Hearsay is not admissible unless allowed by statute, the Rules of Evidence, or other rules 

prescribed under statutory authority. Tex. R. Evid. 802. Hearsay is a statement that “(1) the 

declarant does not make while testifying at the current trial or hearing; and (2) a party offers in 

evidence to prove the truth of the matter asserted in the statement.” Id. 801(d)(1-2). A statement is 

not hearsay if the “statement is offered against an opposing party and . . . is one the party 

manifested that it adopted or believed to be true[.]” Id. 801(e)(2)(B). “Statements made by others 

in a defendant’s presence may be admissible as adoptive admissions if the defendant, . . . by his 

actions and responses, showed agreement with the statements.” State v. Villegas, 506 S.W.3d 717, 

745 (Tex. App.—El Paso 2016), pet. dism’d, State v. Villegas, 544 S.W.3d 375 (Tex. Crim. App. 

2018) (per curiam) (citation omitted).
25

As the proponent of the evidence, the State had the burden of proving to the trial court, by 

a preponderance of the evidence, that Appellant’s statements to Mercedes during the telephone 

conversation qualified as an adoptive admission under Rule 801(e)(2)(B). Alvarado v. State, 912 

S.W.2d 199, 215 (Tex. Crim. App. 1995) (en banc), overruled on other grounds by Warner v. 

State, 245 S.W.3d 458 (Tex. Crim. App. 2008). We review a trial court’s ruling on the admission 

of evidence under an abuse-of-discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370 

(Tex. Crim. App. 2018). We uphold the trial court’s ruling unless it is outside the zone of 

reasonable disagreement. Id.

Here, Mercedes told Appellant that S.C. confided in her that “ever since she was young,” 

“he would always do that. He would masturbate in front of me when you weren’t in the house 

because he was a little drunk.” During their discussion about whether he masturbated in front of 

his step-daughter, Appellant responded: “I do–do remember,” “Yes, you are right, but I don’t . . . 

know,” “Like I told you, I don’t know what . . . happened to me,” “If I got frustrated or I don’t 

know,” “Well I told you that, it’s . . . only that time,” and “I just remember about that time . . . 

[n]othing else.” Regarding S.C.’s age at the time, Mercedes stated Appellant’s behavior had been 

on-going “since [S.C.] was twelve years old.”

In an Article 38.37, § 2-a hearing, “the trial court is the fact finder and as such, is the sole 

arbiter of the credibility of the witness and the weight given to his or her testimony.” Deggs v. 

State, 646 S.W.3d 916, 924 (Tex. App.—Waco 2022, pet. ref’d). The trial court can resolve 

conflicts in the testimony, weigh the evidence, and draw reasonable inferences therefrom. Clayton 

v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Here, Appellant’s, at times, stuttering 

responses did not render his testimony inadequate under Article 38.37. The trial court could have 

reasonably inferred from Appellant’s responses that he adopted both the allegation of an 
26

extraneous offense and that the offense occurred when S.C. was under the age of 17. Based on 

these implied findings, the trial court apparently “determine[d] that the evidence likely to be 

admitted at trial w[ould] be adequate to support a finding by the jury that [Appellant] committed 

the separate offense beyond a reasonable doubt.” See Tex. Code. Crim. Proc. Ann. art. 38.37, § 2-

a(1). On this record, we conclude the trial court did not abuse its discretion by doing so.

C. Rule 403 balancing test

Appellant concedes he may have admitted to something when he said to Mercedes, “it’s . . 

. only that time” and “I just remember about that time . . . [n]othing else.” He asserts the probative

value of the jury hearing him make an “ambiguous acknowledgement” is substantially outweighed 

by the confusing nature of the conversation and the prejudicial effect of hearing Mercedes’s

“inflammatory” statement about S.C.’s allegations.

When evidence of a defendant’s extraneous act is determined to be relevant and admissible 

under Article 38.37, § 2(b), the evidence remains subject to exclusion under Rule of Evidence 403. 

Wishert v. State, 654 S.W.3d 317, 331 (Tex. App.—Eastland 2022, pet. ref’d); see also Deggs, 

646 S.W.3d at 925 (holding admission of evidence pursuant to Article 38.37, § 2(b) is limited by 

Rule 403’s balancing test). Rule 403 allows a trial court to “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.

A trial court undertaking a Rule 403 analysis must balance “(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 
27

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). On appeal, Appellant focuses his argument on the first three 

factors.

(1) Probative value

“[P]robative value means more than simply relevance.” Id. at 641. “Probative value”

“refers to the inherent probative force of an item of evidence—that is, how strongly it serves to 

make more or less probable the existence of a fact of consequence to the litigation—coupled with 

the proponent’s need for that item of evidence.” Id. If the proponent “has other compelling or 

undisputed evidence” to prove the fact, then the item’s probative value “will weigh far less than it 

otherwise might in the probative-versus-prejudicial balance.” Id.

“[E]vidence of a separate sexual offense against a child admitted under Article 38.37, 

Section 2(b) is probative of a defendant’s character or propensity to commit sexual assaults on 

children.” Deggs, 646 S.W.3d at 925; Alvarez v. State, 491 S.W.3d 362, 371 (Tex. App.—Houston 

[1st Dist.] 2016, pet. ref’d) (“Because the evidence of prior sexual abuse of children was especially 

probative of Appellant’s propensity to sexually assault children, the Rule 403 balancing test 

normally will not favor the exclusion of evidence of the defendant’s prior sexual assaults of 

children.”). We conclude the evidence relating to the extraneous offense offered by the State was 

probative of Appellant’s character or propensity to commit sexual offenses with children. As a 

result, we conclude this factor weighs strongly in favor of admission.
28

(2) State’s need for the evidence

“Sexual assault cases are frequently he said, she said trials in which the jury must reach a 

unanimous verdict based solely upon two diametrically different versions of an event, unaided by 

any physical, scientific, or other corroborative evidence.” Hammer v. State, 296 S.W.3d 555, 

561– 62 (Tex. Crim. App. 2009). The courts therefore should use Rule 403 “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.” Id. at 562.

Appellant contends the State’s need for the telephone call was low because the State also 

called two other extraneous-offense witnesses. One witness, A.D., testified to an occasion when 

Appellant grabbed her “trying to put his private area like close to where my rear area was.” She 

could not remember her age at the time, but she knew she was younger than 17 years of age. She 

said there were other occasions when Appellant was “inappropriate” with her, but she could not 

recall the details. The second witness, L.M., testified that when she was six or seven years old, 

Appellant “came behind me [while she was sitting in a van coloring], and . . . he put his hands on 

the seat of the van” and “thrust [“his hard penis”] into my butt as I was bent over coloring. And he 

would–just kept doing it.” She also described several incidents when Appellant masturbated in 

front of her.

Here, D.M.’s outcry came several years after the assault and there was no eyewitness 

testimony or physical evidence of abuse, such as DNA or documented injuries to D.M. The State’s 

case against Appellant rested on D.M.’s testimony about the assault and statements she made to

others about it. It was, in essence, Appellant’s word against hers. Although A.D. and L.M. testified 

about alleged extraneous offenses involving Appellant, the extraneous offense about which S.C. 

told Mercedes was the only offense adopted by Appellant. Therefore, we conclude the State’s need 
29

for this evidence to support D.M.’s credibility was not insignificant. Accordingly, this factor does 

not weigh against admission. See Dies v. State, 649 S.W.3d 273, 286 (Tex. App.—Dallas 2022, 

pet. ref’d).

(3) Improper basis

The phrase, “unfair prejudice,” “refers to a tendency to suggest a decision on an improper 

basis, commonly, though not necessarily, an emotional one.” Gigliobianco, 210 S.W.3d at 641. 

“Evidence might be unfairly prejudicial if, for example, it arouses the jury’s hostility or sympathy 

for one side without regard to the logical probative force of the evidence.” Id.

“[E]vidence of previous child sexual abuse is inherently inflammatory by nature and, 

hence, can be prejudicial.” Dies, 649 S.W.3d at 286; see also Pawlak v. State, 420 S.W.3d 807, 

811 (Tex. Crim. App. 2013) (“When we examine the potential to impress the jury in some irrational 

but unforgettable way, we cannot ignore our statements that sexually related bad acts and 

misconduct involving children are inherently inflammatory.”). “However, the plain language of 

Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence is 

merely prejudicial.” Pawlak, 420 S.W.3d at 811. “Indeed, all evidence against a defendant is, by 

its very nature, designed to be prejudicial.” Id. The question in a Rule 403 analysis is whether the 

evidence was unfairly prejudicial. See Caston v. State, 549 S.W.3d 601, 612-13 (Tex. App.—

Houston [1st Dist.] 2017, no pet.) (acknowledging “evidence that appellant sexually abused 

another child in addition to the complainant in the charged offense was ‘clearly prejudicial’ to his 

case,” but he did not establish it “was unfairly prejudicial”).

Here, the potential for unfair prejudice was relatively diminished by the fact that S.C.’s 

allegations were not more serious than D.M.’s allegations. Dies, 649 S.W.3d at 286 (“Yet this 

potential was diminished in this case by the fact that AD’s allegations were no more serious than 
30

complainant’s. Indeed, although appellant initially abused both girls in similar fashion, his abuse 

of complainant grew worse over time, and she recounted more instances of abuse than AD, and in 

greater detail.”). Further, any tendency to draw impermissible inferences of guilt “can be 

minimized through a limiting instruction.” Beam v. State, 447 S.W.3d 401, 405 (Tex. App.—

Houston [14th Dist.] 2014, no pet.). We generally presume a jury will follow the trial court’s 

instructions in the manner presented, which mitigates the potential for prejudice. See Garcia v. 

State, 614 S.W.3d 749, 757 (Tex. Crim. App. 2019). In this case, the trial court instructed the jury

as follows:

[I]f there is any evidence before you concerning alleged offenses against a child 

under seventeen years of age, other than the complainant alleged in the indictment, 

such offenses or offenses, if any, may only be considered if you believe beyond a 

reasonable doubt that the defendant committed such other offense or offenses, if 

any, and then you may consider said evidence for any bearing the evidence has on 

relevant matters including the character of the defendant and acts performed in 

conformity with the character of the defendant.

We conclude the extraneous-offense evidence did not create a significant potential to 

impress the jury in an irrational but indelible way. Therefore, this factor does not weigh against

admission.

(4) Conclusion

We conclude that after balancing the Rule 403 factors, the trial court could have reasonably 

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

danger of unfair prejudice and the other Rule 403 factors. Accordingly, the trial court did not abuse 

its discretion in admitting the extraneous-offense evidence contained in the telephone call. Because 

we conclude that the trial court did not err by admitting the evidence, we need not conduct a harm 

analysis. We overrule Appellant’s third issue.
31

JURY SHUFFLE

In his fourth issue, Appellant asserts the trial court erred when it denied his request for a 

jury shuffle, and he was harmed by the error. 

A. Background

Before the venire panel entered the courtroom, defense counsel requested a jury shuffle. 

The trial court denied the request on the following basis:

[The request was made] before we had seen anybody, you know, or had any reason 

to look at the jury and say, “This is why.” There is a reason why we set a deadline 

for when a shuffle can be requested, and we give counsel plenty of time to review 

the jury sheets, review the information regarding a juror so that we can then prepare 

and be more efficient in our process today and prepare, for example, our seating 

chart. So for those reasons of efficiency, and I find there is no bias–or any prejudice, 

I should say, against any of the parties by following this procedure, which has 

always been the Court’s procedure, your request is denied.

B. Applicable law

Texas Code of Criminal Procedure Article 35.11 provides as follows:

The trial judge, on the demand of the defendant or his attorney, or of the State’s 

counsel, shall cause a sufficient number of jurors from which a jury may be selected 

to try the case to be randomly selected from the members of the general panel drawn 

or assigned as jurors in the case. The clerk shall randomly select the jurors by a 

computer or other process of random selection and shall write or print the names, 

in the order selected, on the jury list from which the jury is to be selected to try the 

case. The clerk shall deliver a copy of the list to the State’s counsel and to the 

defendant or his attorney.

Tex. Code Crim. Proc. Ann. art. 35.11. “Article 35.11 provides an accused with an absolute right, 

after viewing the seating of the members of the jury panel in the courtroom, to have the names of 

the members of the jury panel shuffled and the panel reseated in a new and random order.” Ford 

v. State, 73 S.W.3d 923, 931 (Tex. Crim. App. 2002) (Holcomb, J., dissenting). A request for a 

jury shuffle is timely if made prior to commencement of voir dire. Ex parte Daigle, 848 S.W.2d 

691, 692 (Tex. Crim. App. 1993) (en banc).
32

C. Analysis

It is undisputed that Appellant requested a shuffle of the venire panel immediately prior to 

voir dire. However, the State argues this request was premature because neither the trial court nor 

the parties had had the opportunity to review the jury sheets or view the venire panel seated in the 

courtroom in its proper order. The State also contends Appellant’s request occurred before any 

justification for such a request could have arisen. While we agree that Appellant’s request for a 

jury shuffle came before “viewing the seating of the members of the jury panel in the courtroom,”

we will assume without deciding that the trial court erred by refusing Appellant’s request for a 

jury shuffle. Therefore, we next assess whether he was harmed by the error.

Because the right to a jury shuffle is statutory rather than constitutional, we will reverse a 

trial court’s improper denial of a motion to shuffle the jury only if we conclude that Appellant was 

harmed by the error. Ford, 73 S.W.3d at 924–25. Harm is caused by nonconstitutional error if one 

of the defendant’s substantial rights was affected. Id. Tex. R. App. P. 44.2(b) (“Any other error, 

defect, irregularity, or variance that does not affect substantial rights must be disregarded.”). 

Therefore, the relevant inquiry in determining harm is “whether the jury shuffle statute’s purpose 

was thwarted by the error.” Ford, 73 S.W.3d at 926. The purpose of the jury shuffle statute is to 

“ensure that the members of the venire [were] listed in random order.” Thus, harm will be shown 

by an indication that the venire members were not listed in a random order. Id. Panels must be 

listed randomly according to the applicable law and rules. Id. (“Randomness is ensured by statutes 

directing the drawing of names, by the certification of the jury list, and by provisions for electronic 

or mechanical methods of selection.”) Id.

Because the law requires that venire panels be assembled in random order, a trial judge’s 

failure to order a shuffle does not, by itself, indicate a non-random listing of the venire members. 
33

In this case, nothing in the record indicates that the statutes or rules by which the initial panel 

would have been drawn were disregarded. Appellant requested the shuffle before the venire panel 

was seated. On appeal, he does not explain his reason for the request, and he provides no strategic 

reason for requesting the shuffle. See Davis v. State, 782 S.W.2d 211, 214 (Tex. Crim. App. 1989)

(en banc) (“In interpreting Article 35.11, we have determined that compliance with that statute is 

had when counsel for either the State or the defendant is allowed the opportunity to view the venire 

seated in the courtroom in proper sequence and is thereafter allowed an opportunity to exercise his 

or her option to have the names shuffled.”); Ford, 73 S.W.3d at 931 (Holcomb, J., dissenting) 

(“That is to say, by way of Article 35.11, the Legislature has provided an accused with a strategic 

tool with which he can reconfigure the jury panel in the hope of either (1) placing visually preferred 

venire members earlier in the seating arrangement so as to increase the probability they will be 

selected or (2) placing visually non-preferred venire members later in the seating arrangement so 

as to decrease the probability they will be selected.”). 

Because the panel had not yet been assembled, we must assume the initial venire members 

would have been assembled in a random order. And there is no indication “that the process of 

assembling a jury panel was subverted in some fashion to achieve a nonrandom listing of the 

venire.” Id. at 926. Therefore, we conclude the trial court’s refusal to shuffle the panel was 

harmless. Accordingly, we overrule Appellant’s fourth issue.

CUMULATIVE HARM

In his fifth and final issue on appeal, Appellant asserts the cumulative harm of the trial 

court’s errors affected his substantial rights. 

A number of errors may be found harmful in their cumulative effect. Chamberlain v. State, 

998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (en banc); see also Martin v. State, 151 S.W.3d 236, 
34

242 (Tex. App.—Texarkana 2004, pet. ref’d) (appellate court should consider cumulative effect 

of multiple errors). The mere existence of multiple errors, however, does not warrant reversal 

unless they operated in concert to undermine the fundamental fairness of the proceedings. Estrada 

v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010); Linney v. State, 413 S.W.3d 766, 767 

(Tex. Crim. App. 2013) (Cochran, J., concurring in refusal of pet.) (“A string of harmless errors 

does not arithmetically create reversible, cumulative error. Instead, we look for multiple errors that 

synergistically achieve the critical mass necessary to cast a shadow upon the integrity of the 

verdict.”) (internal quotations and citations omitted).

As stated above, nonconstitutional error that does not affect an accused’s substantial rights 

is harmless and must be disregarded. Tex. R. App. P. 44.2(b). In making our assessment of whether 

Appellant’s substantial rights were affected, we consider everything in the record, the nature of 

the evidence supporting the verdict, the character of the alleged error, and how it relates to other 

evidence in the record. Motilla, 78 S.W.3d at 355. We also may consider the jury instructions, the 

State’s theory and any defensive theories, closing arguments, and voir dire, if applicable. Id. at 

355–56.

Appellant asserts the trial court’s errors allowed the State to bolster D.M.’s “ever-evolving” 

account of abuse by permitting the two detectives to testify about D.M.’s outcries and deprived 

him of his right to cross-examine D.M. about the critical timing and motive for her outcry.11 Our 

harm analysis for these errors, which included a review of the record, is explained above. Based 

on our review, we concluded these errors did not affect Appellant’s substantial rights. Appellant’s 

11 Appellant also contends the trial court’s errors “injected wholly unproven allegations of sexual misconduct 

involving an extraneous complainant.” We take that to refer to the admission into evidence of the jail call, which we 

concluded was not in error.
35

cumulative error argument does not persuade us that the combined errors operated in concert to 

undermine the fundamental fairness of his trial. Accordingly, we overrule Appellant’s fifth issue. 

See Martin, 151 S.W.3d at 245–46 (“In light of the record as a whole, we are reasonably assured 

that the errors, considered together, did not substantially influence the jury’s verdict.”).

CONCLUSION

We affirm the trial court’s judgment.

LISA SOTO, Justice

April 12, 2024

Before Alley, C.J., Palafox and Soto, JJ.

(Do Not Publish)