Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-22-00149-CR

Samantha Edrie FOSTER,

Appellant

v.

The STATE of Texas,

Appellee

From the 81st Judicial District Court, Wilson County, Texas

Trial Court No. CRW2011299

Honorable Lynn Ellison, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Luz Elena D. Chapa, Justice

Liza A. Rodriguez, Justice

Sandee Bryan Marion, Chief Justice (Ret.)1

Delivered and Filed: July 31, 2023

AFFIRMED

Appellant Samantha Edrie Foster appeals her conviction for three first-degree felony 

counts of serious bodily injury to a child. On appeal, Foster asserts the trial court abused its 

discretion by denying her motion for continuance, admitting hearsay and extraneous offense 

evidence, and imposing consecutive sentences. We affirm the trial court’s judgment. 

1 The Honorable Sandee Bryan Marion, Chief Justice (Retired) of the Fourth Court of Appeals, sitting by assignment 

of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE §§ 74.003, 75.002, 75.003.
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BACKGROUND

Deputies from the Wilson County Sheriff’s Office received a phone call to perform a 

welfare check on children living at a home in Stockdale, Texas. When the deputies arrived at the 

home, they found in Foster’s care her twelve-year-old daughter and her three grandchildren—a 

four-year-old boy, a two-year-old boy, and a one-year-old girl. Deputies described the children as 

extremely disheveled, filthy, and malnourished; they also reported the young boys had bruises and 

feces on their faces and arms. When the deputies walked through the home, they indicated it had 

a foul smell and found it was unsanitary, full of trash, flies, rotten food, and feces; black water 

filled the bathroom tub, and it was unclear whether it worked. They also learned the boys had 

been urinating and defecating in their bedroom because they were kept in their room for extended 

periods of time. Foster told the deputies the home was messy because they were in the process of 

moving. 

Foster was arrested and charged with three counts of serious bodily injury to a child caused 

by starvation and failure to provide for their basic needs. She initially pled not guilty, and the case 

proceeded to a jury trial. During the third day of trial, Foster changed her plea to guilty. The trial 

then moved to the punishment phase, and the jury assessed punishment at twenty-five years’ 

confinement for two counts and ten years’ confinement for the third count. The trial court ordered 

the twenty-five-year sentences to run concurrently, and the ten-year sentence to run consecutively. 

Foster now appeals. 

MOTION FOR CONTINUANCE

Foster first asserts the trial court abused its discretion when it denied her request for a 

continuance. According to Foster, she had not been able to assist with her defense because she 

was ill and had recently been released from the hospital after having been admitted for a lung 
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infection and Covid-19. In response, the State contends Foster failed to preserve this issue for 

appeal because her written motion was not sworn. 

“We review a trial court’s ruling on a motion for continuance for abuse of discretion.” 

Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007); Cruz v. State, 565 S.W.3d 379, 381 

(Tex. App.—San Antonio 2018, no pet.). Article 29.03 of the Texas Code of Criminal Procedure 

authorizes a trial court to continue a criminal action if a defendant files a written motion showing 

sufficient cause. TEX. CODE CRIM. PROC. art. 29.03. Article 29.08 further provides, “All motions 

for continuance must be sworn to by a person having personal knowledge of the facts relied on for 

the continuance.” Id. art. 29.08. The Texas Court of Criminal Appeals has “construed these 

statutes to require a sworn written motion to preserve appellate review from a trial judge’s denial 

of a motion for a continuance.” Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009); 

see Cruz, 565 S.W.3d at 381 (recognizing Texas Court of Criminal Appeals’ holding that a motion 

for continuance must be sworn). 

Here, Foster filed an unsworn, written motion for continuance the morning the case was 

called for trial. Accordingly, we hold Foster failed to preserve for appellate review her complaint 

regarding the trial court’s denial of her motion for continuance. See Cruz, 565 S.W.3d at 381 

(holding Cruz failed to preserve his issue concerning motion for continuance for appellate review 

because motion was not sworn); Woodman v. State, 491 S.W.3d 424, 429 (Tex. App.—Houston 

[14th Dist.] 2016, pet. ref’d) (holding appellant did not preserve any complaint arising out of denial 

of motion for continuance because motion was oral and not sworn). We therefore overrule Foster’s 

first issue. 

ADMISSIBILITY OF EVIDENCE

Foster next asserts the trial court abused its discretion by admitting hearsay and extraneous 

offense evidence. Specifically, Foster contends the trial court improperly admitted an out-of-court 
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statement her twelve-year-old daughter made during an interview at the Child Advocacy Center 

detailing how long the boys would go without eating. Foster also contends the trial court 

improperly admitted extraneous offense evidence by allowing the children’s current foster mother

to testify about how she and her husband have been caring for the children. According to Foster, 

the improper evidence created bias, was highly prejudicial, and affected her substantial rights. The 

State argues, however, Foster waived these evidentiary challenges for appeal by pleading guilty in 

the middle of trial. 

We review a trial court’s decision to admit or exclude evidence under an abuse of discretion 

standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court does not 

abuse its discretion unless its ruling lies outside the zone of reasonable disagreement. Id. If a trial 

court’s ruling is correct under any theory of applicable law and is reasonably supported by the 

record, it should be upheld. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

As indicated by the State, a defendant who enters a guilty plea forfeits his “right to appeal 

a claim of error only when the judgment of guilt was rendered independent of, and is not supported 

by, the error.” Monreal v. State, 99 S.W.3d 615, 619 (Tex. Crim. App. 2003); Young v. State, 8 

S.W.3d 656, 666–67 (Tex. Crim. App. 2000). However, the authority cited by the State does not 

support the proposition that a defendant who enters a guilty plea in the middle of trial waives his 

right to appeal evidentiary rulings admitting hearsay or extraneous evidence offenses; nor do we 

find any authority supporting the State’s contention. See Monreal, 99 S.W.3d at 616 (holding 

defendant waived right to appeal when he signed non-negotiated waiver of appellate rights); 

Young, 8 S.W.3d at 666–67 (concluding defendant who entered guilty plea did not waive motion 

to suppress challenge because judgment of guilt was not independent of error); Brink v. State, 78 

S.W.3d 478, 484 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (holding defendant waived 

issues concerning removal of counsel when he entered guilty plea); see also Flores v. State, No. 
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03-19-00489-CR, 2020 WL 3887976, at *2 n.1 (Tex. App.—Austin July 9, 2020, no pet.) (mem. 

op., not designated for publication) (declining to hold waiver of evidentiary challenges even 

though defendant changed plea from not guilty to guilty). Accordingly, we will address the merits 

of each of Foster’s evidentiary challenges. 

1. Hearsay

Texas Rule of Evidence 801 defines hearsay as an oral or written “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.” TEX. R. EVID. 801(d). “Matter 

asserted” means “(1) any matter a declarant explicitly asserts; and (2) any matter implied by a 

statement, if the probative value of the statement as offered flows from the declarant’s belief about 

the matter.” Id. 801(c). Under Texas Rule of Evidence 802, hearsay is inadmissible except as 

provided by statute or the rules of evidence. TEX. R. EVID. 802; Taylor v. State, 268 S.W.3d 571, 

579 (Tex. Crim. App. 2008). 

Texas Rule of Evidence 613 allows the admission of a witness’s prior inconsistent 

statement for impeachment purposes, but such statements are hearsay unless a hearsay exception 

applies. Willover v. State, 70 S.W.3d 841, 846 n.8 (Tex. Crim. App. 2002); Lund v. State, 366 

S.W.3d 848, 855 (Tex. App.—Texarkana 2012, pet. ref’d) (“A witness’[s] prior inconsistent 

statement is admissible for impeachment, but as substantive evidence of the truth of the matter 

asserted, it is inadmissible unless a hearsay exception applies.”). “Thus, when such a statement is 

offered for impeachment, it is admitted only to show the witness has previously made an 

inconsistent statement and, for that purpose, the evidence is not hearsay.” Lund, 366 S.W.3d at 

855. The party objecting to the evidence bears the full responsibility for requesting an appropriate 

limiting instruction, and on timely request, the trial court must restrict the evidence to its proper 

scope. Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008) (pointing out party’s failure 
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to request limiting instruction renders evidence admissible for all purposes); see Lund, 366 S.W.3d 

at 855; TEX. R. EVID. 105

Here, the record shows during the State’s case-in-chief, the prosecutor asked Foster’s

twelve-year-old daughter how long the boys would go without eating, and she testified “like one 

or two” days. The prosecutor then asked whether there were times the boys would go “several 

days” without eating, and she testified, “Yeah, like three days or so.” The prosecutor continued 

her line of questioning and asked whether she remembered telling the Child Advocacy Center 

interviewer the boys would sometimes go up to a week without eating. Defense counsel made a 

hearsay objection; the trial court overruled the objection on the basis the prosecutor was 

impeaching her own witness with a prior inconsistent statement, and the testimony was not 

evidence. Defense counsel then asked for a limiting instruction, which the trial court denied. 

In this case, the trial court properly concluded the out-of-court statement could be admitted 

for impeachment purposes, and therefore, the statement was not hearsay when offered solely for 

that purpose. See Lund, 366 S.W.3d at 855. However, the record shows the trial court denied 

Foster’s request for a limiting instruction, and there is nothing in the record indicating a hearsay 

exception applied to permit the admissibility of the statement for all purposes. See TEX. R. EVID.

105 (requiring limiting instruction when requested). We therefore conclude the trial court abused 

its discretion by not limiting the admissibility of the out-of-court statement for impeachment 

purposes and rather by admitting it for all purposes. See id. 

The trial court’s error, however, does not result in reversal if, after examination of the 

record as a whole, we determine the error did not influence the jury or influenced the jury only 

slightly. Eggert v. State, 395 S.W.3d 240, 244 (Tex. App.—San Antonio 2012, no pet.). “When 

the erroneous admission of evidence is cumulative of other properly admitted evidence proving 

the same fact, the erroneous admission is harmless.” Id. (citing Brooks v. State, 990 S.W.2d 278, 
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287 (Tex. Crim. App. 1999) (en banc)). Here, the State produced an overwhelming amount of 

evidence showing the children had been starved and were living in deplorable conditions under 

Foster’s care. The State produced video evidence from the deputies’ body cameras showing the 

children were filthy, bruised, severely underweight, and hungry. The video also showed the house 

was in an unsanitary, hazardous state. One of the deputies who had arrived at the home also 

testified the two-year-old boy looked “really sickly” and “you could actually see his ribs.” He 

testified the child was unable to stand due to his frail state, and his skin had been “stretched because 

of the lack of food and protein.” He also described the one-year-old as “emaciated” and 

“reminiscent of someone that was a survivor from the Holocaust.” The State also produced 

photographs showing the children’s malnourished bodies. And during other parts of her testimony, 

Foster’s twelve-year-old daughter stated she was in charge of feeding the one-year-old girl, who 

had Noonan’s syndrome and a feeding tube, and Foster did not feed the boys regularly. The State 

also produced evidence indicating the children needed emergency medical care because their 

bodies were breaking down due to starvation. Accordingly, viewing the record as a whole, we 

conclude the complained of out-of-court statement was cumulative of other properly admitted 

evidence proving the same fact. See id. We therefore hold the error was harmless had the jury 

ultimately determined guilt. See id. 

2. Extraneous Offenses

Foster also contends the trial court improperly admitted extraneous offense evidence. 

Specifically, Foster contends the trial court abused its discretion by admitting evidence describing

how the foster parents would comfort the children when they woke up screaming due to intense

nightmares. Foster refers to this testimony as “extraneous offenses” and argues the testimony was 

“intended to create a bias and prejudice against [her].” 
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“An extraneous offense is ‘any act of misconduct, whether resulting in prosecution or not, 

which is not shown in the charging instrument, and which was shown to have been committed by 

the accused.’” Martinez v. State, 190 S.W.3d 254, 262 (Tex. App.—Houston [1st Dist.] 2006, pet. 

ref’d) (quoting Worley v. State, 870 S.W.2d 620, 622 (Tex. App.—Houston [1st Dist.] 1994, pet. 

ref’d)). In this case, the testimony Foster challenges does not constitute extraneous offense 

evidence. See id. This testimony specifically refers to the foster family’s conduct when the 

children screamed after they had nightmares, not Foster’s alleged acts of misconduct. 

Accordingly, the trial court did not abuse its discretion in admitting the evidence, and we overrule 

Foster’s second evidentiary issue. 

SENTENCING

Finally, Foster argues the trial court abused its discretion when it sentenced her to 

consecutive sentences. Foster argues because each of her offenses arose out of the same criminal 

episode and were prosecuted in a single criminal action, the trial court was required to run her 

sentences concurrently under section 3.03 of the Texas Penal Code. The State responds by arguing 

the trial court had discretion to run her sentences consecutively pursuant to an exception to section

3.03. 

We review a trial court’s decision to impose consecutive sentences for an abuse of 

discretion. Byrd v. State, 499 S.W.3d 443, 446 (Tex. Crim. App. 2016) (citing TEX. CODE CRIM.

PROC. art. 42.08(a)). “A trial court abuses its discretion if it imposes consecutive sentences where 

the law requires concurrent sentences.” Id. 

Section 3.03 of the Texas Penal Code provides: “When the accused is found guilty of more 

than one offense arising out of the same criminal episode prosecuted in a single criminal action, a 

sentence for each offense for which he has been found guilty shall be pronounced. Except as 

provided by Subsection (b), the sentences shall run concurrently.” TEX. PENAL CODE § 3.03(a); 
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see Miles v. State, 506 S.W.3d 485, 486 (Tex. Crim. App. 2016). Subsection (b) lists

circumstances in which the trial court may run sentences consecutively; one of these circumstances 

includes offenses for serious bodily injury to a child punishable as a first-degree felony under 

section 22.04(a)(1) of the Texas Penal Code. TEX. PENAL CODE § 3.03(a), (b)(6)(A); Miles, 506 

S.W.3d at 486. 

Here, Foster pled guilty to three counts of the first-degree felony offense of serious bodily 

injury to a child. The jury assessed punishment at twenty-five years’ confinement for two counts 

and ten years’ confinement for the third count. The record shows the prosecutor asked the trial 

court to run the sentences consecutively, and defense counsel then recognized the trial court had 

this authority and asked the trial court to run the first two counts concurrently and the third count 

consecutively. The trial court ultimately ordered the twenty-five-year sentences to run 

concurrently and the ten-year sentence to run consecutively. Accordingly, because Foster pled 

guilty to three counts of the first-degree felony offense of serious bodily injury to a child, the

exception to the requirement to run the sentences concurrently was invoked. See Byrd, 499 S.W.3d 

at 446; see also TEX. PENAL CODE § 3.03(a), (b)(6)(A). We therefore hold the trial court did not 

abuse its discretion in running her ten-year sentence consecutively. See Byrd, 499 S.W.3d at 446; 

see also TEX. PENAL CODE § 3.03(a), (b)(6)(A). Accordingly, we overrule Foster’s final issue. 

CONCLUSION

Based on the foregoing, we affirm the trial court’s judgment of conviction. 

Luz Elena D. Chapa, Justice

Do Not Publish