NO. 07-11-00121-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL A 

SEPTEMBER 28, 2011 

AARON GUADALUPE GONZALEZ, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

 FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY; 

NO. 21,153-B; HONORABLE JOHN B. BOARD, JUDGE 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

MEMORANDUM OPINION 

 Appellant, Aaron Guadalupe Gonzalez, appeals his conviction for the offense of 

aggravated assault with a deadly weapon, and sentence of 20 years’ incarceration in 

the Institutional Division of the Texas Department of Criminal Justice and $10,000 fine. 

We affirm. 

Background 

 On December 5, 2009, appellant and his 25-week pregnant girlfriend, Lorena 

Soto, attended a Christmas party hosted by Soto’s employer at Acapulco’s Restaurant 

in Amarillo. During the party, appellant started drinking and became increasingly 
2 

aggressive. Appellant told Soto that he wanted to leave the party, but Soto did not want 

to leave. Appellant threatened to pull Soto by the hair if they did not leave the party. 

Soto convinced appellant to wait until after the gift exchange before they would leave. 

However, after the gift exchange, appellant, Soto, and many of Soto’s co-workers 

went to the upstairs area of the restaurant. Once upstairs, appellant again became very 

agitated and aggressive. Appellant began accusing Soto of sleeping with one of her coworkers. Appellant again indicated that he wanted to leave the party. Appellant 

threatened to “kick [Soto’s] ass” regardless of who was there to witness the threatened 

assault. Soto and a couple of her co-workers succeeded in calming appellant down for 

a few minutes until a man that Soto did not recognize came upstairs. Appellant 

indicated that he was going to fight this man. Appellant started calling the man names, 

but the man ignored appellant and went back downstairs. Soto decided that it would be 

best for her and appellant to go home, so they went downstairs to leave the restaurant. 

However, on their way out of the restaurant, appellant saw the man that he had 

previously threatened. Appellant walked up to the man and struck the man’s nose with 

appellant’s head. Soto and appellant immediately left the restaurant and ran to their 

vehicle before the man and his companions could confront appellant. 

When Soto and appellant arrived at their apartment, appellant apologized to Soto 

for his behavior at the party. However, appellant’s mood abruptly changed, and he 

again began accusing Soto of cheating on him. Appellant then dragged Soto to the 

bathroom by her hair. Once in the bathroom, appellant threw a photo album and a 

drawer at Soto. Appellant removed a photo from the photo album, showed it to Soto, 
3 

told her to eat the photo, and then attempted to force it into her mouth. In the process 

of attempting to force Soto to eat the photograph, appellant busted Soto’s lips and 

lacerated her gums with his fingernails. Appellant then repeatedly slammed Soto’s 

head against the bathroom wall while choking her. Appellant also repeatedly lifted Soto 

off of the floor by her hair. Eventually, appellant hit Soto with his fist in the side of her 

stomach with such force that Soto urinated. During this assault, Soto was afraid that 

appellant was going to kill her. 

When appellant left the bathroom to go to the kitchen, Soto attempted to escape 

by running to the front door of the apartment. Appellant came out of the kitchen holding 

a kitchen knife beside his head. Soto was able to open the door, but appellant kicked 

the door closed on Soto’s hand. Soto, fearing that appellant was going to stab her with 

the knife, was able to twist appellant’s arm in a way that caused him to drop the knife. 

After dropping the knife, appellant ran back to the kitchen and grabbed another knife. 

He returned to Soto, but this time he held the knife to his own throat, and threatened to 

stab himself. Soto begged appellant not to stab himself. Soto was afraid that appellant 

would kill her or himself. 

Eventually, appellant calmed down. Soto went to the kitchen sink and threw up. 

She asked appellant to take her to the hospital because she was in pain. After initially 

refusing to take Soto to the hospital, appellant eventually relented. At the hospital, Soto 

was taken to the labor and delivery area. Soto told a nurse about the assault, and 

appellant was ordered off the hospital’s premises. Soto’s recollection of the injuries she 
4 

sustained as a result of the assault included busted lips, swollen and lacerated gums, 

bruising, and bald spots from where appellant had ripped out her hair. 

Officer Caleb Finsterwald of the Amarillo Police Department was dispatched to 

the hospital to interview Soto regarding the assault. Finsterwald observed that Soto had 

an abrasion on her forehead, bleeding lips, and lacerated gums. He also noted that 

Soto had several bruises, and that her left hand was swollen and appeared to have 

started to bruise. Finally, he observed that Soto was missing about a quarter-sized 

chunk of her hair. Soto gave Finsterwald permission to search her apartment, and 

provided him a key to the apartment. When Finsterwald entered Soto’s apartment, he 

found appellant asleep on the couch. Appellant was detained for officer safety, and 

Finsterwald searched the apartment. Finsterwald found two knives lying on an ironing 

board in the living room, a crumpled photo in the bathroom, an indentation in the 

sheetrock of the bathroom wall, and blood droplets on the rim and seat of the toilet. 

Each of these discoveries was consistent with Soto’s account of the assault. After 

Finsterwald completed his search of the apartment, he placed appellant under arrest. 

Appellant was indicted for the offense of aggravated assault. The indictment also 

specifically alleged that appellant used or exhibited a deadly weapon, a knife, during the 

commission of the offense. Just before trial commenced, the State sought clarification 

regarding whether appellant’s head-butt of the man at Acapulco’s Restaurant was 

subject to the trial court’s limine ruling about extraneous offense evidence. After a brief 

discussion of the matter, during which appellant objected that, “I don’t think the fight at 

Acapulco[’s] has anything to do with the assault on Lorena [Soto],” the trial court ruled 
5 

that evidence of this altercation was not subject to its limine ruling. However, the trial 

court did state that, “I’ll note your objection and allow you a running objection to that.” 

At the close of trial, the jury found appellant guilty of the offense. After hearing 

punishment evidence, the jury returned a sentence of 20 years incarceration and a 

$10,000 fine. 

By two issues, appellant appeals. By his first issue, appellant contends that the 

trial court erred in overruling appellant’s motion in limine concerning the extraneous 

offense of appellant’s fight with the man at Acapulco’s Restaurant. By his second issue, 

appellant contends that the evidence was insufficient to support the affirmative finding 

that appellant used or exhibited a deadly weapon in committing the offense. 

Extraneous Offense Evidence 

 By his first issue, appellant contends that the trial court erred in overruling 

appellant’s motion in limine regarding evidence of appellant’s fight with the man at 

Acapulco’s. The State responds that appellant waived this issue by failing to preserve 

any error in the admission of this evidence, and because he is estopped from 

complaining of this evidence since he admitted his guilt to the charged offense during 

the punishment phase of the trial. 

 To preserve an issue for appellate review, the appellant must generally have 

asserted an objection at the time that the challenged evidence was offered that was 

sufficiently specific to make the trial court aware of the grounds for the complaint. See

TEX. R. APP. P. 33.1(a)(1)(A); Layton v. State, 280 S.W.3d 235, 238-39 (Tex.Crim.App. 

2009). However, there are two exceptions to the contemporaneous objection 
6 

requirement. The first exception is that a party may obtain a “running objection” to the 

evidence. See Ford v. State, 919 S.W.2d 107, 113-14 (Tex.Crim.App. 1996). The 

second exception is when the trial court hears the objection outside the presence of the 

jury. See TEX. R. EVID. 103(a)(1). However, a trial court’s ruling on a motion in limine 

does not preserve the erroneous admission of evidence.1 See Roberts v. State, 220 

S.W.3d 521, 533 (Tex.Crim.App. 2007); Martinez v. State, 98 S.W.3d 189, 193 

(Tex.Crim.App. 2003). 

 In the present case, just prior to the start of trial, the State sought clarification 

regarding whether the head-butting evidence was subject to the trial court’s prior motion 

in limine ruling. In response to this inquiry, appellant told the trial court that, “I don’t 

think the fight at Acapulco[’s] has anything to do with the assault on Lorena [Soto], and I 

think that that would be an extraneous offense that should not be admitted.” The trial 

court informed the parties that the head-butting incident was not covered by the motion 

in limine, but added that, “I’ll note your objection and allow you a running objection to 

that.” 

 We disagree with the State’s characterization of the trial court’s ruling on the 

head-butting evidence as a ruling on a motion in limine. In response to the State’s 

inquiry, the trial court clarified that the head-butting evidence fell outside the scope of its 

prior limine ruling. Appellant objected to admission of evidence of the head-butting 

incident on the basis of relevance. The trial court noted appellant’s relevance objection, 

 1

 See Perez v. State, No. 03-08-00773-CR, 2009 Tex.App. LEXIS 6521, at *20-

*21 (Tex.App.—Austin Aug. 21, 2009, no pet.) (mem. op., not designated for 

publication) (explaining the legal reasons why a motion in limine does not preserve 

error). 
7 

and granted him a running objection to this evidence. As such, we conclude that 

appellant has preserved his relevance objection for appellate review. See Ford, 919 

S.W.2d at 113-14. 

 Relevant evidence is “evidence having any tendency to make the existence of 

any fact that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence.” TEX. R. EVID. 401. Questions of 

relevance should generally be left to the discretion of the trial court, relying on its own 

observations and experience, and will not be reversed absent an abuse of discretion. 

Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App. 1993). However, even if 

evidence was erroneously admitted, such error is not reversible absent proof that the 

error affected the defendant’s substantial rights. See TEX. R. APP. P. 44.2(b); King v. 

State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). A substantial right is implicated 

when the error had a substantial and injurious effect on the jury's verdict. Haley v. 

State, 173 S.W.3d 510, 518 (Tex.Crim.App. 2005). In order to ascertain the effect the 

error may have had on the jury's verdict, we are directed to consider everything in the 

record, including all of the evidence received by the jury, to determine how the alleged 

error might be considered in connection with other evidence supporting the verdict. See

id. 

 For purposes of this opinion, we will assume, without deciding, that the evidence 

of appellant’s head-butting of the man at Acapulco’s was erroneously admitted.2

 Even 

 2

 We make this assumption of error with full understanding that “it has long been 

the rule in this State that the jury is entitled to know all the relevant surrounding facts 

and circumstances of the charged offense; an offense is not tried in a vacuum.” Moreno 
8 

assuming error, the Court is still left with the issue of harm. The record reflects that the 

jury heard Soto’s extensive testimony regarding appellant’s assault of her. The jury also 

heard the testimony of Finsterwald and the labor and delivery nurse at the hospital 

confirming the nature of the injuries suffered by Soto. Additionally, the jury heard 

Finsterwald’s testimony concerning his search of the apartment that corroborated Soto’s 

testimony regarding the assault. The State briefly mentioned the head-butting incident 

during its opening and closing arguments. Also, Soto briefly testified about the 

altercation with the man at Acapulco’s. Based upon the totality of the record, we 

conclude that the admission of evidence of the head-butting incident had no impact 

upon the substantial rights of appellant. See id. Therefore, the error, if there was one, 

is harmless. 

We overrule appellant's first issue. 

Evidentiary Sufficiency of Deadly Weapon Finding 

 By his second issue, appellant contends that the evidence was insufficient to 

show that appellant’s use or exhibition of the knives threatened Soto with imminent 

bodily injury. The State responds that the evidence would allow a rational jury to 

conclude that appellant used or exhibited a deadly weapon during the commission of 

the offense of aggravated assault. 

 

v. State, 721 S.W.2d 295, 301 (Tex.Crim.App. 1986). However, such “same transaction 

contextual evidence” is admissible “only when it is ‘necessary’ to the jury’s 

understanding of the offense on trial.” England v. State, 887 S.W.2d 902, 915 

(Tex.Crim.App. 1994). 
9 

 In assessing the sufficiency of the evidence, we review all the evidence in the 

light most favorable to the verdict to determine whether any rational trier of fact could 

have found the essential elements of the offense beyond a reasonable doubt. Jackson 

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133 

S.W.3d 618, 620 (Tex.Crim.App. 2004). “[O]nly that evidence which is sufficient in 

character, weight, and amount to justify a factfinder in concluding that every element of 

the offense has been proven beyond a reasonable doubt is adequate to support a 

conviction.” Brooks v. State, 323 S.W.3d 893, 917 (Tex.Crim.App. 2010) (Cochran, J., 

concurring). We remain mindful that “[t]here is no higher burden of proof in any trial, 

criminal or civil, and there is no higher standard of appellate review than the standard 

mandated by Jackson.” Id. When reviewing all of the evidence under the Jackson

standard of review, the ultimate question is whether the jury’s finding was a rational 

finding. See id. at 906, 907 n.26 (discussing Judge Cochran’s dissent in Watson v. 

State, 204 S.W.3d 404, 448–50 (Tex.Crim.App. 2006), as outlining the proper 

application of a single evidentiary standard of review). “[T]he reviewing court is required 

to defer to the jury’s credibility and weight determinations because the jury is the sole 

judge of the witnesses’ credibility and the weight to be given their testimony.” Id. at 899. 

 Appellant admits that the record is “full of ‘assaults’” but contends that the 

evidence is insufficient to establish that appellant used the knives in such a manner that 

the presence of the knives would place Soto in reasonable apprehension of imminent 

bodily injury. It appears that appellant’s argument is that Soto was in fear for her life 

before appellant acquired the knives and, therefore, his acquisition of the knives did not 

pose “any further threat.” However, for the State to prove appellant was guilty of 
10 

aggravated assault with a deadly weapon, it needed only prove that appellant 

intentionally or knowingly threatened Soto with imminent bodily injury while using or 

exhibiting a deadly weapon. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2) 

(West 2011). In other words, appellant’s threat to Soto’s life was sufficient. 

 We conclude that appellant’s assault on Soto was sufficient evidence to establish 

that appellant intentionally threatened Soto with imminent bodily injury. When this 

threat is then combined with appellant’s display of a knife in a manner in which the 

blade was pointing toward Soto, we conclude that the evidence is sufficient to allow for 

a rational conclusion that appellant’s use of the knives threatened Soto with deadly 

force, even if appellant had no intention of actually using deadly force. See McCain v. 

State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). Further, Soto testified that she felt 

that she had to disarm appellant because, “I thought he was going to stab me with the 

knife.” Thus, the evidence established that appellant’s actions threatened Soto with 

imminent bodily injury, and that Soto perceived this threat both before and after 

appellant acquired a knife. See Olivas v. State, 203 S.W.3d 341, 350 (Tex.Crim.App. 

2006). 

When we view the evidence in the light most favorable to the jury’s verdict, as we 

must when analyzing the sufficiency of the evidence, we are left with the conclusion that 

the jury’s verdict was rational. Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620. As 

such, the evidence was sufficient to support the jury’s verdict beyond a reasonable 

doubt. Brooks, 323 S.W.3d at 917. Accordingly, appellant’s second issue is overruled. 
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Conclusion 

 Having overruled both of appellant’s issues, we affirm the judgment of the trial 

court. 

 Mackey K. Hancock 

 Justice 

Do not publish.