NUMBER 13-23-00244-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

 

PEDRO CANTU JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

ON APPEAL FROM THE 24TH DISTRICT COURT

OF VICTORIA COUNTY, TEXAS

 

MEMORANDUM OPINION

Before Justices Benavides, Tijerina, and Silva

Memorandum Opinion by Justice Benavides

Appellant Pedro Cantu Jr. appeals his conviction for aggravated sexual assault of 

a child, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021(a), (e). Cantu was 

sentenced to fifty years’ imprisonment. By a single issue, Cantu contends the trial court 

erred by failing to supplement the jury charge with additional limiting instructions on the 

use of extraneous offense evidence. We affirm.
2

I. BACKGROUND

At trial, Cassidy1testified that she had two children with Cantu, the oldest of whom

is Grace, the complainant in this case, who was born in 2003. Cassidy testified that she

and her children lived in Victoria between 2009 and 2012, and Cantu would “occasionally” 

visit during this time. Cassidy and the children subsequently moved to San Antonio, but 

Cantu did not follow.

In early 2015, Grace approached Cassidy and asked her, “Is it true that we cannot 

keep secrets from Jehovah God?”2In response, Cassidy explained that “God knows all 

things and sees all things.” Grace then “spoke about having a secret, and she was afraid 

that she was going to get in trouble.” Cassidy encouraged Grace to share her concerns, 

and that is when Grace outcried “about a specific night where . . . she remembered 

sleeping downstairs on the couch with her father.” Grace detailed “that he had her . . . turn 

off the nightlight downstairs.” Grace “said that her father had touched her in her middle 

part.” And “[s]he said that he made her touch him, and she didn’t know exactly what she 

was doing but that he—between his legs it felt wiggly and a lot of skin.” Grace relayed 

that “it was his adult part.” “She said that he told her, I’m going to throw you up in the air 

and catch you. And she said she just felt pain after that in her part—her private part.” 

Grace specified to Cassidy, “His adult part was in my private part.”

Grace was nineteen at the time of trial. Grace testified that she had a “very 

1 We have assigned a pseudonym to the complainant to protect her privacy. See TEX. CONST. art. 

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

and privacy throughout the criminal justice process”). To further protect her identity, we will refer to the 

complainant’s mother as Cassidy. See id.

2 Cassidy explained that, around this time, she was in the process of converting to be a Jehovah’s 

Witness and “was also teaching [her] children.”
3

inconsistent” relationship with Cantu growing up, but that when she was young, she 

“wanted . . . desperately” to have contact with her father. Grace testified that when she 

was “around 6 years old,” Cantu visited for dinner one evening, and her parents asked 

her where she wanted to sleep. She chose to sleep on the couch downstairs with her 

father. Grace “was facing the wall, and [her] back was facing [Cantu].” Cantu then asked 

her “to turn the nightlight off.”

After this, Grace “heard a wrapper, and [Cantu] asked [her] to hold something.” 

Grace “thought maybe the remote was like under him, like it was uncomfortable and [she] 

was going [to] grab it and put it on the floor or something, but it turned out to be his penis.” 

Grace remembered “it felt more like a balloon than skin.” Grace next remembered “[h]im 

scooping [her] up and putting [her] on top.” She initially “thought that he was trying to 

make [her] sleep inward so that he can be outside of the couch. But he put [her] on top.”

Grace “felt it go in, and it hurt.” Grace “didn’t know what was happening” and “was scared” 

and “confused.” Grace stated that “[a]s soon as [she] grunted, he pushed [her] off.” Grace 

testified unequivocally, “My dad raped me.” She further specified that “[h]e stuck his penis 

in [her] vagina.”

On the final day of trial, J.S. (Jasmine)3testified that she, too, was sexually 

assaulted by Cantu. According to Jasmine, her mother was in a relationship with Cantu,

and he was in Jasmine’s life when she was between the ages of six and nine. In 

November of 2014, when Jasmine was eight years old, there was a get-together at 

Jasmine’s house. Jasmine testified that at some point, Cantu asked her to “go sit with 

3 Jasmine was a minor at the time of her testimony. Thus, we identify her by a pseudonym. See 

TEX. R. APP. P. 9.10(a) (defining sensitive data); TEX. FAM. CODE ANN. § 101.003(a) (defining “minor”).
4

him” near the bonfire. Cantu covered the two of them with a blanket and then “started 

messing around with [her] pants and had unbuttoned them.” Cantu then “put his hand 

down [her] pants and started playing around with [her], like, underwear and stuff.” He 

“went underneath [her] underwear and started playing with [her] vagina.” Jasmine testified 

that this lasted about “five or ten minutes.” Afterwards, Jasmine went inside. Cantu and 

other partygoers followed shortly after, and Jasmine noticed that Cantu “had peed his 

pants.” Jasmine testified that she did not immediately report this incident, but informed 

her mother when she was nine years old in April of 2015. Cantu did not request a

contemporaneous limiting instruction on the use of Jasmine’s testimony. See TEX. R.

EVID. 105(b)(1).

The jury found Cantu guilty and sentenced him as described above. This appeal 

followed.

II. JURY INSTRUCTION

By his sole issue, Cantu argues that the trial court erred by denying his request 

during the charge conference that the jury be instructed it “cannot substitute the 

extraneous crimes or bad acts, if any, for the offense alleged in the indictment.”

A. Applicable Law & Standard of Review

Article 36.14 of the code of criminal procedure requires the trial court to provide 

the jury with “a written charge distinctly setting forth the law applicable to the case.” TEX.

CODE CRIM. PROC. ANN. art. 36.14; see Delgado v. State, 235 S.W.3d 244, 247 (Tex. Crim. 

App. 2007). “[A] limiting instruction concerning the use of extraneous offense evidence 

should be requested, and given, in the guilt-stage jury charge only if the defendant 
5

requested a limiting instruction at the time the evidence was first admitted.” Delgado, 235 

S.W.3d at 251; see TEX. R. EVID. 105(b)(1). But “if a defendant does not request a limiting 

instruction under Rule 105 at the time that evidence is admitted, then the trial judge has 

no obligation to limit the use of that evidence later in the jury charge.” Delgado, 235 

S.W.3d at 251. “A failure to request a limiting instruction at the time evidence is presented 

renders the evidence admissible for all purposes and relieves the trial judge of any 

obligation to include a limiting instruction in the jury charge.” Williams v. State, 273 S.W.3d 

200, 230 (Tex. Crim. App. 2008); see TEX. R. EVID. 105(b)(1) (“A party may claim error in 

a ruling to admit evidence that is admissible against a party or for a purpose . . . only if 

the party requests the court to restrict the evidence to its proper scope and instruct the 

jury accordingly.”).

In reviewing an appellant’s challenge to the jury charge, “[f]irst, we determine 

whether the jury instruction is erroneous.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. 

Crim. App. 2012). “Second, if error occurred, then an appellate court must analyze that 

error for harm.” Id. “If a defendant timely objects to alleged jury-charge error, the record 

need only show ‘some harm’ to obtain relief.” Alcoser v. State, 663 S.W.3d 160, 165 (Tex. 

Crim. App. 2022). When no objection is made to the alleged error in the jury charge, 

reversal is not required unless the error resulted in egregious harm. Id. “Harm is assessed 

‘in light of the entire jury charge, the state of the evidence, including the contested issues 

and weight of [the] probative evidence, the argument of counsel and any other relevant 

information revealed by the record of the trial as a whole.’” Id. (quoting Almanza v. State, 

686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g)).
6

B. Analysis

Here, the jury instruction on extraneous offenses provided:

The State has introduced evidence of extraneous crimes or bad acts other 

than the one charged in the indictment in this case. This evidence was 

admitted only for the purpose of assisting you, if it does, for the purpose of 

showing the defendant’s motive, opportunity, intent, or absence of mistake 

or accident, if any. You cannot consider the testimony unless you find and 

believe beyond a reasonable doubt that the defendant committed these 

acts, if any were committed.

Cantu argues that the trial court erred by not also including his requested instruction:

You are further instructed that you cannot substitute the extraneous crimes 

or bad acts, if any, for the offense alleged in the indictment.

Even if you believe the extraneous crimes or bad acts beyond a 

reasonable doubt, you must still consider whether the evidence presented 

proves each and every element of the offense charged in the indictment 

beyond a reasonable doubt, and if it fails to do so, you must acquit the 

defendant.

Cantu contends that he made a timely request for a limiting instruction because counsel 

addressed “the jury charge problem . . . at its earliest opportunity . . . , and the trial court 

found that [its] decision to deny this requested instruction was ‘preserved’ for appellate 

review.” Cantu is correct that, upon denying the supplemental instruction he requested, 

the trial court noted that the “written request for instruction has been filed, and it’s 

preserved for appeal.” But to be entitled to the jury instruction he requested, Cantu was 

required to first request that the extraneous offense evidence be admitted for limited 

purposes, something he recognizes he wholly failed to do. See TEX. R. EVID. 105(b)(1); 

Delgado, 235 S.W.3d at 251.

If the jury is required to consider evidence in a limited manner, then it must 

do so from the moment the evidence is admitted. Allowing the jury to 

consider evidence for all purposes and then telling them to consider that 
7

same evidence for a limited purpose only is asking a jury to do the 

impossible.

Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001).

Cantu concedes that he failed to request a limiting instruction at the time the 

evidence was admitted.

4

Indeed, the trial court discussed this issue at the end of the first 

day of trial, stating, “There was a hearing that the Court was anticipating having with 

regards to an extraneous act or transaction. However, the Defense, I believe, mentioned 

it in opening statements. Are we still going to need to have the hearing on that extraneous 

bad act or transaction, [defense counsel]?” Defense counsel responded, “No, Judge.”

Cantu allowed Jasmine’s testimony to be admitted without requesting any 

limitation to the jury’s consideration of it. “Because appellant did not request a limiting 

instruction at the first opportunity, the evidence was admitted for all purposes.” See id. at 

895. And “because the evidence was admitted without limitation, a limiting instruction was 

not within the applicable law of the case.” See id. Accordingly, it was not error for the trial 

4

In making this concession, Cantu asserts that “[t]his record is silent as to defense counsel’s trial 

strategy in not objecting to, and/or failing to request a limiting instruction, as to [Jasmine]’s testimony not 

bearing upon [Cantu]’s guilt.” See Delgado v. State, 235 S.W.3d 244, 250 (Tex. Crim. App. 2007) (“Texas 

courts have frequently stated that the decision of whether to request a limiting instruction concerning the 

proper use of certain evidence, including extraneous offenses, may be a matter of trial strategy.” (citing 

Ryan v. State, 937 S.W.2d 93, 104 (Tex. App.—Beaumont 1996, pet. ref’d))). Even if it was true that the 

record was silent as to counsel’s strategy, we do not see how that is relevant to whether Cantu was entitled 

to the jury instruction he requested. But, in fact, the record is not silent as to why defense counsel pursued 

this strategy. In defense counsel’s opening, he brought the issue up, remarking, “[Y]ou’re going to see a 

common theme throughout this, ladies and gentlemen. You’re going to see [an] angry ex with a young child 

and a sex allegation that arises. And then you’re going to see another angry ex with a young child and 

another sex allegation that arises.” See Powell v. State, 63 S.W.3d 435, 439 (Tex. Crim. App. 2001) 

(concluding that an opening statement can open the door to the admission of extraneous offense evidence). 

Counsel also explicitly referenced the extraneous outcry involving Jasmine, stating elsewhere in his 

opening, “April 19th of 2015, . . . [Jasmine] . . . makes an outcry.”

Thus, it was part of defense counsel’s strategy to paint Cassidy as a vindictive ex-girlfriend, 

conspiring to concoct the allegation in this case out of jealousy or spite. And if the extraneous offense 

evidence was admissible for this purpose, then the evidence was also admissible to combat the assertion 

that Grace’s allegation was not true. See id.
8

court to deny Cantu’s request to supplement the extraneous offense evidence instruction 

in the jury charge. See id.; TEX. CODE CRIM. PROC. ANN. art. 36.14.

We overrule Cantu’s sole issue on appeal.

III. CONCLUSION

We affirm the trial court’s judgment.

GINA M. BENAVIDES

Justice

Do not publish.

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

Delivered and filed on the

2nd day of May, 2024.