Alberto Pena v. State

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

ALBERTO PENA, § No. 08-16-00236-CR Appellant, § Appeal from the v. § 120th District Court THE STATE OF TEXAS, § of El Paso County, Texas Appellee. § (TC# 20120D04958) §

OPINION ON MOTION FOR REHEARING

After submission of our original opinion, Appellant, Alberto Pena, filed a motion for

rehearing urging us to reconsider our rulings with respect to the first, second, and third issues

raised in his original brief relating to the trial court’s limitations on his voir dire. Although we

deny Appellant’s motion for rehearing, we withdraw our original opinion and judgment of October

26, 2018, and substitute the following opinion and judgment in their place.

A jury convicted Alberto Pena of one count of aggravated sexual assault of a child and one

count of indecency with a child and sentenced him to twenty years’ imprisonment for each

conviction. He now appeals his convictions in nineteen issues. We affirm.

BACKGROUND1

1 Due to the number of issues raised on appeal, and in the interest of brevity, we discuss the basic underlying facts of On September 26, 2012, David Solis, the principal of an elementary school in El Paso,

Texas, received information from a bus monitor that J.M.,2 a nine-year old student in the fourth

grade who was new to the school, had mentioned that she had problems at home, mainly that her

father (Pena) was mean to her. Solis described that the report came on a day when children would

be released early. Late in the morning, about 11:15 a.m., Solis brought J.M. into his office to ask

her about her conversation with the bus monitor. Solis described J.M. as being active and

emotional. He asked her to share what she had shared with the bus monitor. J.M. told Solis that

her father was mean to her, he would hit her with a belt, and she described an incident where he

forced her to hold two bottles with her arms extended, and if she dropped them, he would hit her,

and it would hurt a lot.

J.M. became teary eyed after she spoke. Solis paused for a moment, allowed her to finish,

then asked her if there was anything else. J.M. said there were times she would get beaten with a

belt, that she would hide under her bed, and her younger sibling would hide, too, and they both

would get punished after they were located. J.M. also stated that her grandparents would hit her

as well. When Solis asked her if there was anything else she wanted to say, J.M. became more

emotional, began to shake and stayed quiet. Solis decided she may be more comfortable speaking

to his assistant principal, Rosa Perez, so he went to find her. Unable to locate Perez before the

bell rang, Principal Solis made sure that J.M. made it to her bus on time. Later, after Solis

informed Perez of his conversation, Perez filed a CPS report that evening.

the case here. Other facts more pertinent to each issue will be discussed in the respective section of each issue. 2 To protect the identity of the minor-victim and her minor sibling, we refer to them by their initials. See TEX. R. APP. P. 9.10(a)(3).

2 The following day, Solis provided Perez with background information of his conversation

with J.M. Perez then called J.M. to the school counselor’s office so that she could talk to her.

During the ensuing conversation, in which J.M. seemed tense and nervous, J.M. told Perez and the

school counselor who was present that she did not like Pena because he would hit her with his

hand or shoe, force her to kneel and hold up bottles, and make her “do things.” As J.M. was

saying this, Perez noticed that she was squirming in her chair. When asked whether she knew the

difference between “good touch” and “bad touch,” J.M. said that she did. When Perez asked if

Pena had hurt her before, J.M. said, “just with the touches.” At this point, Perez instructed the

school counselor to call CPS. As J.M. gave details about what Pena had done, Perez noted that

she seemed relieved to be talking about it. J.M. also said that she was worried about the well-

being of her brother, J.P. Neither J.M. nor J.P. were allowed to go home that day, and law

enforcement took both children to the Child Advocacy Center (CAC) in El Paso, Texas.

J.M. was subsequently interviewed at the CAC for suspected abuse. She was also

examined by Gloria Salazar, a Sexual Assault Nurse Examiner (SANE), who later testified at trial

that she found bruises throughout J.M.’s body. Nurse Salazar wrote in her SANE report that J.M.

reported pain coming from her neck, vagina, and anus. During the examination, J.M. told Nurse

Salazar that Pena had attempted to put his “thing” inside her, and she had tried to prevent him from

doing so, but her father did not let her. She also indicated to Nurse Salazar that Pena had

penetrated her vagina and anus with his fingers, and that she did not tell him to stop because Pena

was intoxicated at the time, and because he would have become angry if she had done so. J.M.

also told Salazar that Pena beat her with his shoes, and he hit her almost every day after school.

Following the SANE examination, J.M. was subsequently placed into several foster homes and

3 treatment centers.

The State charged Pena by indictment with three counts of aggravated sexual assault of a

child, and two counts of indecency with a child. At trial, the State called J.M. to testify. At the

time of trial, J.M. was twelve years old and entering the seventh grade. When she was asked

about the period of 2012, J.M. testified she was then living with her grandparents, her father, her

uncles, and her brother, and attended Desert Wind school. J.M. described she would sleep on a

bed that pops out of the couch in the living room. Her father slept on the bed with her and her

brother slept on the other couch next to the bed except that she and her brother sometimes took

turns and switched with each other.

When asked about the day she talked to the bus driver, J.M. testified Pena sexually

assaulted her by penetrating her vagina with his penis and fingers. She also testified that Pena

touched her the same with his hands and on the outside of her private part. She further testified

that Pena had previously sexually assaulted her while he was in the shower with her, that his sexual

abuse toward her started when she was approximately four or five years old, and that Pena had on

one occasion forced her to hold his penis in her hands and make them “go up and down.”

To rebut these accusations, the defense presented the theory that J.M. had made a false

outcry of sexual abuse against Pena. In support of this contention, it argued, inter alia, that J.M.

was dishonest and manipulative, had been diagnosed with conduct disorder and exhibited other

psychological issues, and had made allegedly false outcries against various other people to get

what she wanted, citing testimony from J.M. and the defense’s own witnesses for these

propositions. Pena also testified in his defense, denying that he committed the offenses against

J.M., but admitting that he slept in the same fold-out couch with her and that he would spank her.

4 Prior to submitting the case to the jury, the State abandoned one count of indecency with a

child. The jury acquitted Pena of two counts of aggravated sexual assault, convicted him of one

count of aggravated sexual assault and one count of indecency with a child, and sentenced him to

twenty years’ imprisonment for each conviction. This appeal follows.

DISCUSSION

Pena raises nineteen issues on appeal. In the interest of efficiency, we will address issues

raising similar arguments together and discuss them out of numbered order. As a rendition issue,

we first consider Pena’s challenges to the legal sufficiency of the evidence. These issues will be

followed by his challenges to the trial court’s evidentiary decisions. Lastly, we will address issues

regarding procedural matters.

SUFFICIENCY OF THE EVIDENCE We first address Pena’s challenges to the sufficiency of the evidence supporting his

convictions. See, e.g., Garcia v. State, No. 11-08-00159-CR, 2010 WL 1713026, at *1 (Tex.

App.—Eastland Apr. 29, 2010, pet. ref’d) (mem. op., not designated for publication). In Issues

Seven and Eight, Pena argues that the evidence was legally insufficient to support his convictions

for aggravated sexual assault of a child and indecency with a child by sexual contact. Pena argues

in Issue Seven that the evidence was legally insufficient to prove that Pena digitally penetrated

J.M.’s sexual organ. In Issue Eight, Pena argues the evidence was legally insufficient to prove

that he intended to cause J.M. to touch his genitals with the intent to arouse or gratify his sexual

desire.

Standard of Review

In a legal sufficiency challenge, we determine whether, viewing all evidence in the light

5 most favorable to the jury’s verdict, any rational jury could have found the essential elements of

the charged offense beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex.

Crim. App. 2017) (citing Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979)). Evidence may be legally insufficient when the record “contains either no evidence

of an essential element, merely a modicum of evidence of one element, or if it conclusively

establishes a reasonable doubt.” Id. (citing Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim.

App. 2013) (internal quotation omitted)). We may not re-weigh evidence or substitute our

judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.

2007). Further, we presume that the jury resolved any conflicting inferences from the evidence

in favor of the verdict, and we do not substitute our judgment for that of the jury because the jurors

are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to

their testimony. Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App. 2012); Brooks v.

State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).

Aggravated Sexual Assault of a Child

Pena argues in Issue Seven that the evidence was insufficient to prove that he penetrated

J.M.’s sexual organ digitally. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (a person commits

aggravated sexual assault if he intentionally or knowingly causes the penetration of the anus or

sexual organ of a child by any means). In particular, he contends the evidence supporting the

penetration element of the offense is insufficient because (1) at one point in her testimony, J.M.

denied that Pena had touched the inside of her vagina; (2) Nurse Salazar’s SANE report that J.M.

reported that “he also put his fingers and it hurt” was ambiguous; and (3) Nurse Salazar did not

make a medical finding about the state of J.M.’s internal genitalia.

6 We disagree, and we find that the evidence in the record is legally sufficient to support the

penetration element of aggravated sexual assault of a child. Early in her testimony, J.M. testified

that her father had touched her with his penis inside of her “front area,” the part of her body she

used to “pee.” And when asked whether Pena had ever touched her “front area” with any part of

Pena’s body other than his penis, J.M. answered, “his hands.” She also testified that he touched

her with his hands “the same,” and when read in context, “the same” being her “front area,” or

vagina. Having already described the manner in which Pena had put his penis inside her, J.M.

indicated he had used his hands to touch her in the same place. Similarly, J.M. told Nurse Salazar

that “he also put his fingers and it hurt” while pointing to her vaginal area and buttocks which

meant “he also put his fingers inside and it hurt.”

Although J.M. later replied “no” when asked if Pena had touched the inside of her vagina,

her testimony read in context suggests that he had in fact done so; as such, we defer to the jury’s

resolution of J.M.’s inconsistent testimony and resolve the issue in favor of the jury’s verdict. See

Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986) (the trier of fact has the

responsibility to reconcile inconsistent or conflicting witness testimony, and it may choose to

believe a portion of the testimony and reject other portions); Williams, 235 S.W.3d at 750.

Further, since J.M. informed Solis, other school officials, and Salazar of the offense less than one

year after the date of the alleged offense, her testimony alone is sufficient to support Pena’s

conviction for a sexual offense committed against her. See TEX. CODE CRIM. PROC. ANN. art.

38.07; Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref’d).

We also consider Salazar’s testimony regarding her SANE report, which indicated that

bilateral abrasions found on J.M’s vagina, while possibly consistent with causes other than

7 penetration, were not likely to be so because she observed none of the signs related to those causes

during her examination of J.M. On the contrary, Nurse Salazar testified that the injury was

evidence of blunt trauma consistent with fingers being inserted into the vagina. Salazar also

testified that she wrote in her report that J.M. reported that Pena used his digits, or fingers, to

penetrate her. As such, this evidence supports the penetration element of the offense, and the jury

was free to believe or disbelieve Salazar’s findings made during her examination of J.M. See

Losada, 721 S.W.2d at 309.

Viewing the evidence in the light most favorable to the verdict, we conclude that the

evidence is legally sufficient to support the penetration element of aggravated sexual assault of a

child, such that a rational jury could have found that the State established this element beyond a

reasonable doubt. See, e.g., Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) (the

slightest penetration of the female sexual organ is sufficient to prove penetration, even when the

vagina is not entered); Johnson v. State, No. 08-06-00151-CR, 2008 WL 2175249, at *1, 3 (Tex.

App.—El Paso May 22, 2008, no pet.) (not designated for publication) (child-victim’s statements

to SANE examiner that defendant “rubb[ed] against her private, [that] it did not feel very good,”

and that he put his hand “on top of or inside her private” constituted legally sufficient evidence to

prove digital penetration element of aggravated sexual assault of a child); Lopez v. State, No. 08-

05-00036-CR, 2006 WL 736976, at *4–5 (Tex. App.—El Paso Mar. 23, 2006, pet. ref’d) (not

designated for publication) (evidence that defendant touched his “private part” with victim’s

“private part” and it hurt, combined with vaginal bruising, was legally sufficient to prove

penetration). Pena’s seventh issue is overruled.

Indecency with a Child by Sexual Contact

8 Pena argues in Issue Eight that J.M.’s testimony that Pena forced her to “grab his private

part” and “go up and down” and that she thought that “it was nasty” was legally insufficient

evidence to support the intent element of the offense of indecency with a child by sexual contact.

See TEX. PENAL CODE ANN. § 21.11(a)(1). In particular, he asserts that J.M. did not provide

enough details through her testimony about the date this alleged incident occurred, how Pena was

behaving during the incident, or the particular details about Pena’s sexual organ showing that he

became aroused during the alleged incident.

A person commits the offense of indecency with a child when he engages in sexual contact

with a child younger than seventeen years of age, or causes the child to engage in sexual contact.

Id. The offense requires proof of the intent to arouse or gratify the sexual desire of the defendant,

but does not require proof that arousal or gratification actually occurred. Caballero v. State, 927

S.W.2d 128, 130 (Tex. App.—El Paso 1996, pet. ref’d). Thus, while Pena argues that there was

no evidence showing that he was aroused during the commission of the alleged offense, the State

was not required to prove that Pena became aroused or gratified at the time the offense occurred.

See id.

Yet, intent may be inferred by a defendant’s actions, and J.M. testified that Pena forced her

to hold his sexual organ and “go up and down,” supporting the rational inference that Pena intended

to arouse or gratify himself by forcing J.M. to do so. See McKenzie v. State, 617 S.W.2d 211, 216

(Tex. Crim. App. 1981) (for indecency with a child by contact offense, defendant’s intent to gratify

or arouse sexual desire may be inferred through defendant’s conduct). Contrary to Pena’s

assertions, no oral expression of intent or visible evidence of sexual arousal is necessary to

establish the arousal element of the offense. See Scott, 202 S.W.3d at 408. Again, the jury as

9 the fact finder was free to believe or disbelieve J.M.’s testimony that Pena forced her to touch his

sexual organ and “go up and down,” and giving the required deference to the jury’s verdict, we

conclude that her testimony is legally sufficient evidence to support the intent to gratify or arouse

element of indecency with a child by contact. See id.; see also Mendoza v. State, No. 11-06-

00260-CR, 2008 WL 2133084, at *2 (Tex. App.—Eastland May 22, 2008, no pet.) (mem. op., not

designated for publication) (child-victim’s testimony that defendant made her put her hand on his

private part and “move her hand up and down” was legally sufficient evidence to establish intent

to gratify or arouse element of indecency with a child, reasoning that there was “no other logical

explanation for his conduct”). Pena’s eighth issue is overruled.

EVIDENTIARY ISSUES

Hearsay Issues

We next consider Pena’s two issues concerning evidentiary matters. In Issues Ten and

Twelve, Pena argues that the trial court abused its discretion by allowing witness testimony

containing hearsay statements. In Issue Ten, Pena asserts that the trial court erred by allowing

Detective Connor, one of the State’s witnesses, to testify that Maria Guadalupe Pena, Pena’s

mother, told him that the bedsheets located in the Pena residence had been washed that day, and

that this testimony constituted inadmissible hearsay evidence. In Issue Twelve, Pena argues that

the trial court admitted hearsay statements from Principal Solis who testified about what J.M. had

said to him about her father regarding his alleged physical abuse toward her.

Applicable Law

A statement is hearsay if the declarant does not make the statement while testifying at the

current trial, and the party offers the statement in evidence to prove the truth of the matter asserted

10 in the statement. TEX. R. EVID. 801(d). Statements containing hearsay are inadmissible unless

an exclusion or exception to the general hearsay rule applies. TEX. R. EVID. 802. Yet, statements

made outside of the court proceeding, but not offered for the truth of the matter asserted, are

admissible. Gholson v. State, 542 S.W.2d 395, 398 (Tex. Crim. App. 1976). Likewise, out-of-

court statements not offered for the truth of the matter asserted, but rather as impeachment

evidence, are not hearsay and are admissible subject to other rules of evidence. See, e.g., Lund v.

State, 366 S.W.3d 848, 855 (Tex. App.—Texarkana 2012, pet. ref’d). Finally, “[a] statement

relating to a startling event or condition, made while the declarant was under the stress of

excitement that it caused” is an “excited utterance” which is an exception to the hearsay rule.

TEX. R. EVID. 803(2).

The trial court’s decision to admit or exclude testimony, including testimony purportedly

containing hearsay, is reviewed for abuse of discretion. See Coffin v. State, 885 S.W.2d 140, 149

(Tex. Crim. App. 1994); see also Knight v. State, 457 S.W.3d 192, 201 (Tex. App.—El Paso 2015,

pet. ref’d) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on

reh’g)). We will uphold the trial court’s decision to admit or exclude evidence if it falls within

the zone of reasonable disagreement, and we afford “great discretion” to a trial court in its decision

to admit evidence and give corresponding deference to its evidentiary decisions. See

Montgomery, 810 S.W.2d at 378.

Maria Guadalupe Pena’s Testimony

We first address Pena’s tenth issue. At trial, Pena called Maria Guadalupe Pena to testify.

On cross-examination, the State asked Ms. Pena if she had told police officers, who were executing

a search warrant at her residence, that the bedding from the pull-out couch located in the Pena

11 residence’s living room had been washed. Over Pena’s hearsay objection, Ms. Pena denied

making this statement to the officers, and testified that she told the officers searching her residence

that the bedding set from the couch had not been washed. Later at trial, the State called Detective

Regan Connor, who was involved in the investigation, to testify. When the prosecutor asked

Detective Connor about the bedsheets that were located in the Pena residence’s hallway, he

testified over Pena’s hearsay and improper impeachment objections that while he was at the Pena

residence, Ms. Pena had told him that the bedsheets had been washed that day.

On appeal, Pena argues that the trial court erred by allowing Detective Connor to testify

that Ms. Pena told him that the bedding had been washed that day, which he contends was an

inadmissible hearsay statement not falling within an exclusion or exception to the hearsay rule.

The State responds that Ms. Pena’s out-of-court statement that the bedding had been washed was

not hearsay because the statement was not being offered for the truth of the matter asserted in the

statement, but rather for the purpose of impeachment by prior inconsistent statement. In other

words, the State argues that Ms. Pena’s testimony was not elicited to prove that the bedsheets were

washed that day, but rather to impeach Ms. Pena with her prior inconsistent statement that she had

told the officers at her home that the bedsheets had not been washed that day.

At first glance, Ms. Pena’s testimony at trial that the bedding was not washed seems to be

inconsistent with her out-of-court statement to Detective Connor that the bedding was, in fact,

washed. Yet, Ms. Pena’s testimony at the trial that the bedding on the couch had not been washed

was not inconsistent with her previous out-of-court statement made to Detective Connor, who

testified that Ms. Pena had told him that the bedding in the hallway had been washed. As the

State admits, testimony and photographs established that the bedding from the couch with the stain

12 was still on the couch when it was photographed, and not in the hallway where other bedding was

found. As such, Ms. Pena’s testimony that the bedding on the couch had not been washed was

not inconsistent with her previous statement that the bedding in the hallway had been washed, and

the State did not properly offer the statement for impeachment purposes. See TEX. R. EVID.

613(b); Flores v. State, 48 S.W.3d 397, 404 (Tex. App.—Waco 2001, pet. ref’d) (in-court

testimony that was not inconsistent with out-of-court statement was not properly offered for

impeachment and thus constituted inadmissible hearsay).

Since the State improperly offered Detective Connor’s testimony regarding Ms. Pena’s out-

of-court statement for impeachment purposes, and instead offered it for the truth of the matter

asserted—that is, that the bedsheets had been washed—Ms. Pena’s out-of-court statement that the

bedding in the hallway had been washed was inadmissible hearsay, and the trial court erred in

admitting Detective Connor’s testimony. See TEX. R. EVID. 801(d); TEX. R. EVID. 802; see Lopez

v. State, 86 S.W.3d 228, 230–31 (Tex. Crim. App. 2002) (en banc) (prior statement not shown to

be false does not contradict in-court testimony and does not constitute proper impeachment);

Flores, 48 S.W.3d at 404.

Principal Solis’s Testimony

In Issue Twelve, Pena argues that the trial court erred when it allowed Principal Solis to

testify about what J.M. had told him during the initial outcry of physical abuse allegedly committed

by Pena, arguing that J.M.’s statements were inadmissible hearsay not falling within an exception.

The State counters that the trial court properly admitted Solis’s testimony because the “excited

utterance” exception to the hearsay rule applied, since J.M. was in an excited state when she was

telling Solis about the alleged physical abuse.

13 We disagree with the State’s contention that J.M.’s statements to Solis qualified as excited

utterances within the meaning of TEX. R. EVID. 803(2). An excited utterance is “[a] statement

relating to a startling event or condition, made while the declarant was under the stress of

excitement that it caused.” TEX. R. EVID. 803(2) (emphasis added). As Pena points out, J.M.’s

excited state while talking to Solis was not related to the startling event or condition, i.e., Pena’s

actual commission of the alleged sexual offenses committed against her. Instead, J.M. was in an

excited state because she was going through the stress of talking about a traumatic event, Pena’s

alleged sexual abuse toward her, and not as a direct result of the event itself. As such, J.M.’s

statements did not fall within the excited utterance exception and constituted inadmissible hearsay,

and the trial court abused its discretion in admitting Solis’s testimony about J.M.’s out-of-court

statements made to him. Compare with Lupher v. State, No. 05-00-01190-CR, 2002 WL

31057019, at *3 (Tex. App.—Dallas Sep. 17, 2002, no pet.) (not designated for publication) (child

victim’s statement made while she was very upset about a sexual assault that had occurred shortly

before testifying witness heard it was an excited utterance within the meaning of the hearsay rule).

Harm Analysis

Having determined that Detective Connor’s and Solis’s testimonies contained inadmissible

hearsay, we now consider both errors simultaneously to determine whether the cumulative impact

of the errors in admitting the testimonies requires reversal. See Davis v. State, 104 S.W.3d 177,

182 (Tex. App.—Waco 2003, no pet.) (in applying the test for harmless error, “[w]e must view

[each] error, not in isolation, but in relation to the entire proceedings”). Ordinarily, the erroneous

admission of evidence is non-constitutional error to be reviewed under the harmless error standard

set forth in TEX. R. APP. P. 44.2(b); as such, erroneous evidentiary rulings rarely rise to the level

14 of constitutional error. Bagheri v. State, 119 S.W.3d 755, 762–63 (Tex. Crim. App. 2003); Potier

v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002). Pena does not argue that his constitutional

rights were violated by either the erroneous admission of Detective Connor’s testimony about Ms.

Pena’s hearsay statement, or Principal Solis’s testimony regarding J.M.’s hearsay statements.

Thus, we must consider whether the admission of the statements affected Pena’s substantial rights,

such that they exerted “a substantial and injurious effect or influence in determining the jury’s

verdict.” Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). Conversely, the error is

harmless if, after considering the record as a whole, we have “fair assurance that the error did not

influence the jury, or had but a slight effect.” Bagheri, 119 S.W.3d at 763. In doing so, we

consider (1) the character of the alleged error and how it might be connected to other evidence; (2)

the nature of the evidence supporting the verdict; (3) the existence and degree of additional

evidence indicating guilt; and (4) whether the State emphasized the complained of error. Id.

Balancing these factors, we find that there is a fair assurance that the errors did not

influence the jury, or had a slight effect, and thus the errors were harmless. First, Pena argues

that Detective Connor’s testimony was harmful because it allowed the jury to speculate about the

forensic value of the unidentified source of the stain on the bedsheet. The stain could have been

inferentially connected to other evidence tending to establish Pena’s guilt in the case, such as the

SANE exam or J.M.’s testimony; yet, the State iterated during closing argument that “nobody ever

suggested that the orange sheet [on the couch] was washed. We’re [talking] about the folded ones

in the hallway.” Thus, the likelihood that the jury would misinterpret Ms. Pena’s hearsay

statement or use it for an improper purpose was reduced, and this factor weighs against a finding

of harmless error. Likewise, the existence of the orange bed sheet with an unexplained stain was

15 not a central issue at trial, and there was other properly admitted evidence tending to establish

Pena’s guilt, such as J.M.’s testimony and the presence of J.M.’s injuries established through the

SANE examination.

Thus, the second and third Bagheri factors also weigh in favor of a finding that the error

was harmless. See Motilla v. State, 78 S.W.3d 352, 359–60 (Tex. Crim. App. 2002) (error was

harmless where erroneously admitted evidence was not related to the central issue in the case, and

where there was other evidence in the record tending to establish the defendant’s guilt); Bagheri,

119 S.W.3d at 763. Further, the record demonstrates that Ms. Pena’s hearsay statement was not

discussed again during the trial; as such, the State did not emphasize the error, and the fourth factor

also suggests that the error was harmless. See Motilla, 78 S.W.3d at 359 (error was not

emphasized where party did not mention complained-of testimony during closing arguments).

Balancing the factors laid out in Bagheri, while the stain could have been connected to other

evidence in the case, there is other evidence in the record supporting the verdict and tending to

establish Pena’s guilt, and the State did not emphasize the error. We therefore conclude that there

is a fair assurance that the trial court’s error did not influence the jury or had but a slight effect,

did not affect Pena’s substantial rights, and was thus harmless. See TEX. R. APP. P. 44.2(b);

Bagheri, 119 S.W.3d at 763; Motilla, 78 S.W.3d at 359–60.

Turning to Principal Solis’s testimony, Pena argues that his substantial rights were violated

because the admission of Solis’s statements had the effect of bolstering J.M.’s credibility, which

was critical in this case. Thus, Pena contends that Solis’s testimony that J.M. told him about

Pena’s alleged abuse toward her had a substantial or injurious effect on Pena because the jury

would be more likely to believe that Pena was capable of sexual abuse if they believed he was

16 capable of physical abuse. The State responds that the evidence was cumulative of other properly

admitted evidence in the form of J.M.’s testimony, and thus any error was harmless.

We agree with the State that the trial court’s error was harmless, in part because J.M.’s

testimony establishing that Pena physically abused her was properly admitted at trial without

objection. See, e.g., Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (error in

admitting hearsay statements is harmless if other evidence proving the same facts was properly

admitted elsewhere); Luna v. State, No. 05-06-00205-CR, 2007 WL 241164, at *3–4 (Tex. App.—

Dallas Jan. 30, 2007, no pet.) (mem. op., not designated for publication) (erroneous admission of

hearsay statements regarding child-victim’s outcry was harmless where the same evidence was

properly admitted elsewhere at trial). The thrust of J.M.’s relevant testimony, which was admitted

without objection, was largely the same as the hearsay statements contained in Solis’s testimony,

i.e., that Pena was physically abusive, punished her often, and hit her with his belt or his hand.

As such, any error in the admission of this evidence was rendered harmless when the trial court

properly admitted similar evidence without objection. See Anderson v. State, 717 S.W.2d 622,

627-28 (Tex. Crim. App. 1986).

As for Solis’s hearsay testimony not also established by J.M.’s testimony—that Pena

forced J.M. to hold two bottles with her arms extended, and that she and J.P. would hide under the

bed and would be punished by Pena when he found them—we find that the erroneous admission

of this testimony was also harmless. While the existence of additional testimony establishing

physical abuse could be connected to the charged sexual abuse offenses, the State did not

emphasize the fact that J.M. was forced to hold bottles over her head or hide under the bed, and

there was other evidence tending to establish Pena’s guilt, such as J.M.’s properly admitted

17 testimony and her injuries established by the SANE examination. As such, we have a fair

assurance that the erroneously admitted testimony regarding these statements did not affect the

jury’s verdict or had but a slight effect, and the admission of Solis’s testimony did not affect Pena’s

substantial rights. See Bagheri, 119 S.W.3d at 763.

Conclusion

In sum, while the trial court erred in admitting Detective Connor’s and Solis’s testimonies

because they contained hearsay statements which did not fall within an exclusion or exception to

the hearsay rule, the admission of their testimonies was harmless. Since the admission of the

hearsay statements did not affect Pena’s substantial rights, we must disregard these errors, even

when the effects of the errors are considered together. See TEX. R. APP. P. 44.2(b); Brooks, 990

S.W.2d at 287; Davis, 104 S.W.3d at 182. Issues Ten and Twelve are overruled.

Rule 401 and Rule 403 Issues

We next consider Pena’s issues regarding the trial court’s purportedly erroneous admission

of evidence. In Issues Nine, Eleven, and Thirteen, Pena argues that the trial court abused its

discretion by admitting certain evidence in violation of Texas Rules of Evidence 401 and 403. In

particular, he argues in Issue Nine that the trial court erred in admitting photographs depicting a

fitted bed sheet showing an unexplained stain under a reactive light because (1) the photographs

were irrelevant pursuant to Rule 401, (2) their admission violated Rule 403 due to the likelihood

that the jury would give the photographs undue weight in their decision-making, and (3) the

photographs would distract the jury from the central issues in the case. Pena argues in Issue

Eleven that the trial court erred in displaying J.M.’s underwear to the jury because doing so was

unfairly prejudicial. Finally, Pena argues in Issue Thirteen that the trial court erred by allowing

18 Solis to testify that the case was “horrible and sinful beyond what [he] could imagine” because the

statement was irrelevant and unfairly prejudicial. Before addressing these issues, we first discuss

the applicable standard of review and Rules 401 and 403 generally.

We review the trial court’s decision to admit evidence under the same abuse of discretion

standard set forth above. Knight, 457 S.W.3d at 204 (citing Montgomery, 810 S.W.2d at 391).

As such, we will uphold the trial court’s decision to admit or exclude evidence if it falls within the

zone of reasonable disagreement, and we afford “great discretion” to a trial court in its decision to

admit evidence and give corresponding deference to its evidentiary decisions. See Montgomery,

810 S.W.2d at 378.

Rules 401 and 403

Evidence is relevant if it has any tendency to make a fact more or less probable than it

would be without the evidence, and the fact is of consequence in determining the action. TEX. R.

EVID. 401. Relevancy is determined by whether a reasonable person, with some experience in

the real world, would believe that the particular piece of evidence is helpful in determining the

truth or falsity of any fact of consequence. Montgomery, 810 S.W.2d at 376. To be relevant,

evidence does not have to conclusively prove or disprove a particular fact, but must only provide

“a small nudge toward proving or disproving some fact of consequence.” Stewart v. State, 129

S.W.3d 93, 96 (Tex. Crim. App. 2004).

Yet, relevant evidence may still be excluded by the trial court if its probative value is

substantially outweighed by the danger of, inter alia, unfair prejudice, confusion of the issues, or

misleading the jury. TEX. R. EVID. 403. To determine whether the trial court’s actions violated

19 Rule 403, we must consider the following factors by weighing: “(1) the inherent probative value

of the evidence and (2) the State’s need for that evidence against (3) any tendency of the evidence

to suggest a decision on an improper basis, (4) any tendency to confuse or distract the jury from

the main issues, (5) any tendency to 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 be needlessly cumulative.” Knight, 457

S.W.3d at 204 (quoting Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006)).

Rule 403 favors the admission of relevant evidence and carries a presumption that relevant

evidence will be more probative than prejudicial. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim.

App. 2007).

Admission of Bedsheet Photographs

With the foregoing in mind, we first address Issue Nine, regarding the admission of the

photographs showing a stain on the bedsheets collected from the Pena residence. During its case-

in-chief, the State offered photographs of a fitted sheet found on the sofa bed where Pena

purportedly committed the alleged offense. The trial court admitted the photographs over Pena’s

relevance and Rule 403 objections, and over his argument that the photographs would be

misleading and could allow the jury to speculate that the stain was somehow related to sexual

activity. Deputy Monica Alonzo, a crime-scene investigator with the El Paso Sheriff’s

Department at the time of the offense, testified that these photographs depicted the sheet under

reactive lighting, which could not identify the kind of fluid which created the stain. Deputy

Alonzo further testified that the stain was swabbed and tested for acid phosphatase and semen,

which came back negative.

20 On appeal, Pena argues that the photographs were irrelevant because it would not have

made any fact of consequence more or less likely than it would have been without the evidence,

since the nature of the stain on the bedsheet could not be identified and the bedsheet tested negative

for acid phosphate or semen. While the stain depicted in the photographs may have tested

negative for acid phosphate or semen, making it less likely to have been connected to the offense,

this fact does not render the photographs inadmissible because the evidence does not have to

conclusively prove or disprove a particular fact, but only provide “a small nudge toward proving

or disproving some fact of consequence.” Stewart, 129 S.W.3d at 96. Thus, it was not a

predicate for the relevancy of the photographs for the State to prove that the stain tested positive

for acid phosphate or semen, or that they alone proved Pena committed the sexual offenses against

J.M.; instead, the photographs themselves were sufficient to provide a “small nudge” toward

establishing that Pena sexually assaulted J.M. on the bed. See id.

Likewise, the photographs were relevant because they depicted the scene of the alleged

assault, which would have served to assist the jury in visualizing the crime scene and was probative

of the circumstances related to the offense. See Aguilar v. State, No. 01-15-00972-CR, 2017 WL

3634248, at *7 (Tex. App.—Houston [1st Dist.] Aug. 24, 2017, pet. ref’d) (mem. op., not

designated for publication) (photographs which serve to assist the jury in visualizing the crime

scene were relevant and probative of the circumstances related to the offense) (citing Chamberlain

v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999)). The photographs also provided a visual

representation of Deputy Alonzo’s testimony, and were relevant for that reason as well. See id.;

see also Cano v. State, 3 S.W.3d 99, 110 (Tex. App.—Corpus Christi 1999, pet. ref’d). Thus, the

trial court’s decision to admit the photographs was within the zone of reasonable disagreement,

21 and we conclude it did not abuse its discretion by failing to exclude the photographs on relevancy

grounds.

Pena also argues that the trial court violated Rule 403 by admitting the photographs because

the photographs were misleading, and the jury was not equipped to evaluate the probative force of

the stain on the bedsheet and could easily have given the photographs depicting the stain undue

weight in their decision-making. He further asserts that the trial court erred in admitting the

photographs because of the likelihood that the photographs would distract the jury from what he

argues was the central issue in the case, which he contends was whether J.M.’s testimony was

credible.

In this case, the photographs depicting the bedsheet were probative because they depicted

possible evidence of the offenses alleged, i.e., that Pena sexually assaulted J.M. and those acts

could have created stains on the bedsheet, and likewise assisted the jury in visualizing the crime

scene and understanding the circumstances related to the charged offenses. See Aguilar, 2017

WL 3634248, at *8; Williams v. State, 82 S.W.3d 557, 562–63 (Tex. App.—San Antonio 2002,

pet. ref’d) (depiction of a crime scene which was a visual representation of testimony describing

the scene was not unfairly prejudicial). The State had need for the evidence because the

photographs depicted possible stains related to the commission of the offense, even though they

did not serve as conclusive evidence that the offense had occurred, and because they assisted the

jury in understanding Deputy Alonzo’s testimony regarding her investigation. See Stewart, 129

S.W.3d at 96; Williams, 82 S.W.3d at 562–63. On the other hand, the photographs were unlikely

to cause the jury to make a decision on an improper basis or inflame its members’ emotions

because there was nothing emotionally charged or outrageous about the photographs depicting the

22 stain. Contrary to Pena’s assertion that the main issue in the case was whether J.M. was credible,

another critical issue was whether the offenses took place at all, and the stain was evidence tending

to show that the offense could have taken place; thus, the risk of distracting the jury from the main

issues in the case was low. Likewise, the jury was not likely to give the photographs undue weight

because Deputy Alonzo had testified that the stains had not tested positive for acid phosphate or

semen, thus providing the proper context to consider the photographs while limiting the jury’s

ability to assign more evidentiary weight to the photographs than they were worth. Finally, as the

photographs took approximately a page-and-a-half in the reporter’s record to develop through

witness testimony, the presentation of the evidence did not take an inordinate amount of time, and

the photographs were not unnecessarily cumulative of other admitted evidence.

Balancing the factors laid out in Gigliobianco, we conclude that the trial court’s decision

to admit the photographs did not amount to an abuse of discretion, such that its decision was

outside the zone of reasonable disagreement. See, e.g., Williams, 82 S.W.3d at 562–63 (trial

court’s admission of video evidence depicting a crime scene which was corroborated by witness

testimony did not violate Rule 403).

Even if the trial court abused its discretion in admitting the photographs of the stain on the

bedsheet, we conclude that its action was harmless. See TEX. R. APP. P. 44.2(b) (errors not

constitutional in nature and not affecting substantial rights must be disregarded); Motilla, 78

S.W.3d at 355 (substantial rights are not affected by the erroneous admission or exclusion of

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

error did not affect the jury, or had but a slight effect). In reviewing the record as a whole, we

consider (1) the character of the alleged error and how it might be considered in connection with

23 other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree

of other evidence indicating guilt; and (4) whether the State emphasized the complained of error.

Bagheri, 119 S.W.3d at 762–63.

In this case, the presence of the stains on the bedsheet was not a critical piece of evidence

tending to establish Pena’s guilt, especially because no incriminating semen or other bodily fluids

were found on the bedsheet, and the record shows that this fact was explained to the jury.

Likewise, there was other evidence tending to establish Pena’s guilt, such as J.M.’s testimony and

the presence of J.M.’s injuries detected during the SANE exam. Finally, the State did not

emphasize the presence of the stain and did not substantially rely on it in its theory of the case.

As such, we conclude that the error, if one occurred at all, was harmless and must be disregarded.

See TEX. R. APP. P. 44.2(b); Bagheri, 119 S.W.3d at 762–63; Motilla, 78 S.W.3d at 355. Issue

Nine is overruled.

Display of Victim’s Underwear

We next consider Issue Eleven, in which Pena argues that the trial court erred in allowing

J.M.’s underwear, which was collected as part of the SANE examination, to be displayed to the

jury. Pena argues that the trial court’s actions had the potential to inflame the jury’s passions, and

the underwear itself lacked probative value. Again, Pena cites Rule 403 for these contentions.

At trial, the State offered the contents of an envelope containing items collected from the

SANE examination, including J.M.’s underwear that she was wearing at the time of the

examination. Without objection from defense counsel, the trial court admitted all of the

envelope’s contents, including the underwear. Shortly afterward, defense counsel objected to the

State displaying the underwear to the jury, arguing that doing so would be inflammatory and a

24 violation of Rule 403. Although the underwear was already admitted into evidence, the trial court

sustained the objection and prohibited the State from displaying the underwear to the jury,

reasoning that the underwear was not probative since no identifiable DNA was collected from the

underwear.

During the last day of its deliberations, the jury requested to open and examine all evidence

that was closed and sealed, including the underwear collected during the SANE examination.

Defense counsel again objected to displaying the underwear to the jury, arguing that doing so

would be inflammatory and without probative value, and that displaying the underwear to the jury

could allow its members to misinterpret the evidentiary meaning of the underwear. The State

responded that its witness had testified that no seminal fluid was found on the underwear, and thus

the risk that the jury would misinterpret the evidence was low. The trial court responded that it

would instruct the bailiff to open the other contents of the envelope first, and then briefly display

the underwear to the jury and remove it from the jury deliberation room, reasoning that the

defense’s objection was to “parading” the underwear in front of the jury and that it had previously

sustained Pena’s Rule 403 objection to displaying the underwear to the jury. Defense counsel

objected to the trial court’s planned course of action, which the trial court overruled. Although

the record is not clear on this matter, the bailiff presumably carried out the trial court’s order by

briefly displaying the underwear to the jury and then removing it from the deliberation room.

On appeal, Pena raises the same Rule 403 objection he made at trial, i.e., that displaying

the underwear to the jury was highly prejudicial while having low probative value, and that doing

so could have allowed the jury to misinterpret the evidence. The State responds that the risk for

unfair prejudice was unavoidable since the offense involved the sexual molestation of a child, and

25 that the risk for misinterpreting any unexplained stains, rips, or marks on the underwear was

nonexistent because the presence of such characteristics on the underwear is not apparent from the

record. Likewise, it argues that under Code of Criminal Procedure, article 36.25, the trial court

could not have abused its discretion in ordering the bailiff to display the underwear to the jury

because the trial court was statutorily required to furnish all admitted exhibits to the jury upon its

request.

We conclude that the trial court did not abuse its discretion in ordering the bailiff to briefly

display the underwear to the jury, and then directing the bailiff to remove it from the deliberation

room. Cited by the State, article 36.25 reads, “[t]here shall be furnished to the jury upon its

request any exhibits admitted as evidence in the case.” TEX. CODE CRIM. PROC. ANN. art. 36.25

(emphasis added). Compliance with this statute is mandatory, and a trial court’s failure to do so

constitutes harmful error. Parker v. State, 745 S.W.2d 934, 936 (Tex. App.—Houston [1st Dist.]

1988, pet. ref’d) (citing Lopez v. State, 628 S.W.3d 82, 85 (Tex. Crim. App 1982) (panel op.)).

Although Pena made a Rule 403 objection to the display of the underwear, the trial court admitted

the underwear into evidence without objection, and thus it was evidence properly before the jury.

Under the plain language of the statute’s mandatory “shall” language, along with the language

requiring “any” admitted exhibits to be displayed to the jury upon its request, the trial court was

statutorily required to display the underwear to the jury when it requested it, and the trial court

would have erred had it refused to do so. See id.; see also Lopez, 628 S.W.2d at 85 (it is error to

refuse to allow the jury to examine admitted exhibits upon request). Thus, because the underwear

was properly admitted into evidence without objection, we hold that the trial court did not err when

it ordered the bailiff to briefly display the underwear to the jury, and then remove it from the jury

26 deliberation room. See Parker, 745 S.W.2d at 936; Lopez, 628 S.W.2d at 85.

Even if the trial court abused its discretion in displaying the underwear to the jury, we

conclude that its action was harmless. See TEX. R. APP. P. 44.2(b) (errors not constitutional in

nature and not affecting substantial rights must be disregarded); Motilla, 78 S.W.3d at 355.

Again, to determine whether non-constitutional error, such as the erroneous admission of evidence,

constitutes reversible error, we consider (1) the character of the alleged error and how it might be

considered in connection with other evidence; (2) the nature of the evidence supporting the verdict;

(3) the existence and degree of other evidence indicating guilt; and (4) whether the State

emphasized the complained of error. Bagheri, 119 S.W.3d at 762–63.

As the trial court noted, the defense was primarily concerned with “parading” the

underwear in front of the jury, and the inflammatory effect doing so may have had. By limiting

the jury’s access to the underwear, the trial court’s actions struck a balance of fairness because it

complied with its statutory duty to furnish requested evidence to the jury, while insuring that the

display of the underwear had minimal prejudicial effect and honoring its earlier ruling sustaining

the defense’s Rule 403 objection. We are further convinced that the error, if one occurred, did

not influence the jury’s decision or had but a slight effect. First, the presence of the underwear

was not a critical piece of evidence tending to establish Pena’s guilt, especially because no

incriminating DNA evidence was found on the underwear, and the record does not show that there

were unexplained stains which could mislead the jury. Likewise, there was other evidence

tending to establish Pena’s guilt, such as J.M.’s testimony and the presence of J.M.’s injuries

detected during the SANE examination. Finally, the State did not emphasize the presence of the

underwear and did not substantially rely on it in its theory of the case. As such, we conclude that

27 the error, if one occurred at all, was harmless and must be disregarded. See TEX. R. APP. P.

44.2(b); Bagheri, 119 S.W.3d at 762–63; Motilla, 78 S.W.3d at 355. Issue Eleven is overruled.

In Issue Thirteen, Pena argues that the trial court erred in allowing Principal Solis to testify

that this case was unusual because it “was horrible and sinful beyond what [he] could imagine.”

In particular, he contends that Solis’s statements were irrelevant and violated Rule 403 because

the probative value of the statement was significantly outweighed by the risk of unfair prejudice.

The State called Solis to testify. On cross-examination, the defense called into question

Solis’s memory of the outcry and the accuracy of his testimony by questioning why he did not

include in his written report certain facts he testified about at trial. Solis admitted that he “may

be adding things in [to his testimony] that ... weren’t in [his] statement before,” such as his

testimony that J.M. was shaking as she was speaking during the initial outcry. Defense counsel

then suggested that the reason Solis was testifying about events not included in his report because

“that’s not exactly how it happened back then,” but Solis disagreed. Defense counsel also

suggested that Solis was remembering events not included in his report after his conversations

with prosecutors, which Solis agreed with.

On re-direct examination, the State elicited testimony from Solis that he had encountered

approximately forty to fifty cases of child abuse during his employment, and when the State asked

whether any of those cases “st[u]ck out in [his] mind,” Solis replied, “[n]ot like this one.” When

the State asked what Solis meant by this statement, defense counsel objected on the bases of

relevance and Rule 403, which the trial court overruled. The State asked the question again, and

Solis stated, “[the case] was unusual because, to me, what we later found out, to me, was horrible

28 and sinful beyond what I can imagine.” The State then elicited testimony from Solis that he had

thought more about the case and had attempted to recall more details about it, and that he had not

included details about J.M.’s demeanor in his statement because he had not thought it was an

important detail at the time. Afterwards, the State moved on to other topics, and Solis’s statement

at issue was never raised during the trial again.

On appeal, Pena argues that Solis’s statement that the case was “horrible and sinful beyond

what [he could] imagine” was irrelevant because it did not matter how this case compared to other

instances of abuse that Solis had encountered, and because Solis’s testimony did not provide a

context by which to compare this case to other instances of child abuse he had encountered. Pena

also argues that the admission of the testimony violated Rule 403 because the jury was not

equipped to properly decide the probative value of the evidence, the testimony confused the issues

by causing the jury to speculate about the other instances of abuse Solis alluded to, and the

testimony elicited an improper emotional response from the jury. The State counters that Pena

had “opened the door” to the testimony and invited a response to rebut those accusations by calling

into question Solis’s memory about the event and his truthfulness about his testimony regarding

J.M.’s demeanor. It also argues that the statement was not unfairly prejudicial and did not violate

Rule 403.

We first consider whether Pena opened the door to Solis’s statements by attacking his

memory of the event and the credibility of his testimony. A party opens the door to the admission

of otherwise inadmissible evidence when he elicits testimony from a witness that invites the

opposing party to respond. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). As

such, a party’s attempt to leave a false impression with the jury invites a response from the

29 opposing party to rebut that false impression. Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim.

App. 2009).

Here, the defense attempted to undermine the credibility of Solis’s testimony by insinuating

that he had a poor memory of his conversation with J.M., and that he had fabricated his recollection

about J.M.’s behavior during his testimony as a result of his pretrial conversations with the State.

As the State points out, the defense opened the door to an attempt by the State to rehabilitate Solis’s

testimony on cross-examination by eliciting testimony regarding why he could recall this case in

particular, and why he could recall more details during trial than he could when he gave his

statement to the police. Even assuming the evidence was inadmissible, Solis’s opinion that the

case was particularly bad was evidence tending to negate the impression left by the defense that

he had a poor memory of the event or that he had fabricated his testimony. As such, the trial court

properly admitted the statement because the defense had invited a response to rebut the impression

left on the jury that Solis had a poor memory of the event and was fabricating his testimony. See

id.; Williams, 301 S.W.3d at 687.

Likewise, even assuming the defense had not opened the door to Solis’s testimony, the trial

court still did not abuse its discretion in admitting the testimony. The defense had made the

statement relevant because it had attacked Solis’s memory and credibility and made them an issue

in the case, and Solis’s testimony that the case was particularly bad to him made a fact of

consequence more likely than it would have been without the testimony. See TEX. R. EVID. 401;

Hayden, 296 S.W.3d at 554. Further, under the Gigliobianco factors set forth above, the

admission of the testimony did not violate Rule 403. The testimony was probative of Solis’s

memory and credibility since it tended to establish that he remembered J.M.’s recollection of the

30 events and bolster his credibility, and also helped to establish J.M.’s credibility, which was a

central issue in the case. In addition, the State had need for the testimony because the defense

had attempted to attack Solis’s memory and credibility, and the testimony helped to rehabilitate

the witness’s testimony and credibility. While Solis’s testimony could have elicited an emotional

response from the jury, it did not serve to distract from the main issues in the case, there is nothing

to suggest that the jury could have given the statement undue weight, and the State did not spend

an inordinate amount of time developing the testimony.

We conclude that the trial court’s decision was within the zone of reasonable disagreement,

and its decision to admit this relevant testimony did not violate Rule 403. See Gallo, 239 S.W.3d

at 762 (the presumption exists that relevant evidence is not unfairly prejudicial); see also Ford v.

State, 919 S.W.2d 107, 113, 116 (Tex. Crim. App. 1996) (trial court’s decision to admit testimony

by a witness that a crime scene was “horrible” was within the zone of reasonable disagreement,

was not unfairly prejudicial, and did not violate Rule 403 because the testimony was relevant to

issues in the case). Issue Thirteen is overruled.

Testimony Regarding Purported Abuse of J.P.

In Issue Sixteen, Pena argues that the trial court erred by admitting testimony from two

witnesses which suggested that Pena had physically abused J.M.’s brother, J.P. He contends that

the testimony from each of these witnesses was irrelevant, unfairly prejudicial, contained

inadmissible hearsay, and their admission violated the Confrontation Clause.

At trial, the State called Gloria Aguero, a CPS investigator, to testify. During her

testimony, Aguero stated that she met with J.M. in 2008 in response to a report regarding potential

child abuse that was submitted to CPS. This meeting took place approximately four years before

31 J.M.’s 2012 outcry associated with this case, but the case was ultimately closed and J.M. was not

removed from her home. When the prosecutor asked Aguero who the “other person that [her] ...

investigation involved,” Aguero responded, “I believe it was her younger brother, [J.P.].”

Defense counsel objected on the basis of relevance and Rule 403, which the trial court overruled.

The prosecutor then discussed topics other than the purported physical abuse towards J.P., and the

issue regarding Aguero’s investigation involving J.P. was not raised again at trial.

Next, the State called Marcela Barraza who was previously employed as a detective with

the El Paso County Sheriff’s office. Over Pena’s hearsay, Confrontation Clause, relevance, and

Rule 403 objections, all of which the trial court overruled, Detective Barraza testified that J.P.

made an outcry of physical abuse to her, but she did not specify who that outcry was made against.

Detective Barraza’s testimony regarding J.P.’s outcry was also not discussed again at trial.

Relevance Argument

We first address Pena’s relevance argument. Pena contends the testimonies suggesting

J.P. was physically abused were “not relevant to prove sexual abuse of JM.” We disagree. J.M.

had testified that she was being physically abused at home, and the witnesses’ testimonies

suggesting her brother was being physically abused tended to support her testimony that she was

also physically abused; thus, the testimonies tended to support J.M.’s credibility, which was an

important issue at trial. As such, the testimonies that J.P. made an outcry of physical abuse tended

to provide “a small nudge toward proving or disproving some fact of consequence,” and the trial

court did not abuse its discretion in admitting the testimonies over Pena’s relevance objection.

See TEX. R. EVID. 401; Stewart, 129 S.W.3d at 96.

Rule 403 Argument

32 Pena also argues that the testimonies were “highly prejudicial [and] ... portrayed Pena as a

bad father, an abusive father, and a bad person, in general.” Given the lack of substantive analysis

or citation to proper authority in Pena’s brief, we could resolve this matter as being waived through

inadequate briefing. See TEX. R. APP. P. 38.1(i); Blanco v. State, No. 08-15-00082-CR, 2017 WL

604050, at *5–6 (Tex. App.—El Paso Feb. 15, 2017, no pet.) (not designated for publication)

(when a party’s argument consists of conclusory statements and lacks substantive analysis, the

party has inadequately briefed the issue and presents nothing for our review) (citing Russeau v.

State, 171 S.W.3d 871, 882 (Tex. Crim. App. 2005)). In the interest of justice, we construe Pena’s

argument as being that the trial court violated Rule 403 by erroneously admitting the testimonies,

whose probative values were outweighed by the risk of unfair prejudice, given that Pena made

Rule 403 objections to the testimonies at trial and that argument is thus preserved for appellate

review.

A trial court’s decision to admit evidence in the face of a Rule 403 objection is analyzed

under the Gigliobianco factors set out above. Knight, 457 S.W.3d at 204 (citing Gigliobianco,

210 S.W.3d at 641–42). Here, the witnesses’ testimonies were probative because they tended to

establish that children in the Pena home were physically abused, and they therefore supported

J.M.’s credibility, a key issue at trial. As such, the State’s need for the evidence was relatively

high. Given the nature of the offenses and the graphic nature of the testimony elicited at trial, it

is unlikely that testimonies establishing that J.P. made an outcry of physical abuse would tend to

allow the jury to make a decision on an improper basis, such as emotion. Likewise, there was

little chance that the testimonies would distract the jury from the main issues or be given undue

weight by the jury because the allegations were not made against Pena in particular. Finally, the

33 testimonies did not take an inordinate time to develop, and only consisted of a few questions which

together consisted of less than a full page of the reporter’s record.

As such, we conclude the trial court did not abuse its discretion in overruling Pena’s Rule

403 objection at trial, such that its decision was outside the zone of reasonable disagreement.

Hearsay and Confrontation Clause Arguments

Next, we consider Pena’s hearsay and Confrontation Clause arguments. As a preliminary

matter, we first address whether Pena preserved his hearsay and Confrontation Clause arguments

regarding Aguero’s testimony. See Moore v. State, 371 S.W.3d 221, 225 (Tex. Crim. App. 2012)

(error preservation is a threshold issue because the correctness of trial court rulings must be

preserved for appellate review). To preserve the issue for appellate review, a defendant arguing

that the admission of testimony violated the Confrontation Clause must object at trial to its

introduction in a timely and specific manner. TEX. R. APP. P. 33.1(a); In Matter of E.H., 512

S.W.3d 580, 586 (Tex. App.—El Paso 2017, no pet.). Likewise, the arguments on appeal must

comport with the objections made at trial. Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App.

2005). Confrontation Clause complaints are subject to the same preservation requirements as

other issues. Id. at 179–80.

Here, when the State elicited testimony from Aguero that her investigation involved

suspected abuse of J.P., the defense objected on the grounds of relevance and Rule 403, but not on

Confrontation Clause or hearsay grounds. As they pertain to Aguero’s testimony, we find that

Pena’s Confrontation Clause argument was not preserved for appellate review, and he has waived

his right to make that complaint on appeal. See TEX. R. APP. P. 33.1(a); In Matter of E.H., 512

S.W.3d at 586. Likewise, since Pena did not object at trial to Aguero’s testimony on hearsay

34 grounds, his argument that Aguero’s statement contained inadmissible hearsay was also not

preserved for appellate review, and is also waived. See TEX. R. APP. P. 33.1(a).

Next, we turn to whether the admission of Detective Barraza’s testimony that J.P. reported

to her that Pena physically abused him contained inadmissible hearsay. Other than citation to the

general rules related to hearsay, Pena’s brief advances no argument whatsoever as to how

Detective Barraza’s statement contained inadmissible hearsay. As such, he has waived his

hearsay argument on appeal and we decline to address it on the merits. See TEX. R. APP. P. 38.1(i);

Blanco, 2017 WL 604050, at *5–6 (citing Russeau, 171 S.W.3d at 882).

Finally, we address the contention that the admission of Detective Barraza’s testimony

violated the Confrontation Clause. Other than a citation to the general rules related to a

Confrontation Clause analysis and a conclusory statement that Pena did not have the opportunity

to confront J.P., Pena advances no argument as to how the testimony violated the Confrontation

Clause, and for this reason alone the issue could be considered waived. See TEX. R. APP. P.

38.1(i). Yet even if we were to consider the argument on the merits, Pena has not argued, let

alone established, that the outcry J.P. allegedly made to Detective Barraza was testimonial in

nature. See Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App. 2011) (“[T]o implicate the

Confrontation Clause, an out-of-court statement must (1) have been made by a witness absent from

trial and (2) be testimonial in nature.”) (citing Crawford v. Washington, 541 U.S. 36, 50–52, 59,

124 S.Ct. 1354, 1363–65, 1368–69, 158 L.Ed.2d 177 (2004)). As such, he has not shown that the

Confrontation Clause was violated through the admission of Detective Barraza’s testimony, and

his argument must fail. See id.

35 In sum, the trial court did not abuse its discretion in admitting the testimonies because they

were relevant to show children in the Pena household were physically abused, and thus tended to

support J.M.’s credibility. Neither did the trial court violate Rule 403 by admitting the testimonies

because the probative value of the evidence was not outweighed by the risk of unfair prejudice.

Pena did not raise a hearsay or Confrontation Clause objection to Ms. Aguero’s testimony at trial,

and has not preserved the error for appellate review. Further, Pena’s argument that Detective

Barraza’s testimony consisted of inadmissible hearsay was inadequately briefed, and thus presents

nothing for our review. Finally, Pena’s contention that the admission of Detective Barraza’s

testimony violated the Confrontation Clause fails because he has not demonstrated that the

statements were testimonial, and thus has not shown that the Confrontation Clause is implicated

in this matter. Issue Sixteen is overruled.

Exclusion of Defense Witnesses

Next, we consider Issues Seventeen, Eighteen, and Nineteen. Pena argues that the trial

court erred when it excluded testimony from certain witnesses, which he contends effectively

prevented him from presenting certain defensive theories at trial. In particular, Pena argues in

Issue Seventeen that the trial court erred by excluding cross-examination testimony from J.M. that

she was angry at her mother for leaving her with her father, which impaired his ability to present

the defensive theory that J.M.’s anger issues were not due to Pena’s alleged sexual abuse toward

her. Pena argues in Issue Eighteen that the trial court erred by excluding testimony from Rube

Arrelano, Pena’s neighbor, and Ruth Pena, both of whom testified that J.M. had engaged in prior

sexual contact with other children. He contends this error prevented him from presenting the

defensive theory that these prior incidents were the source of J.M.’s sexual knowledge, and that

36 she did not learn this sexual knowledge through Pena’s alleged commission of the charged

offenses. Finally, Pena argues in Issue Nineteen that the trial court erred when it excluded

testimony from Carlos Pena, J.M.’s grandfather, that J.M. was not being truthful about what had

occurred with Pena, and that “she had [previously] told five lies.”

The trial court’s exclusion of evidence is reviewed under the same abuse of discretion

standard set forth above. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007)

(citing Montgomery, 810 S.W.2d at 391). If a trial court’s evidentiary ruling excluding evidence

is within the zone of reasonable disagreement and is correct under any theory of law applicable to

the case, we will not reverse the trial court’s decision. Id. (citing Montgomery, 810 S.W.2d at

391).

While the Sixth Amendment guarantees the right to present a defense, this right is not

unlimited, and is subject to reasonable restrictions. Potier, 68 S.W.3d at 659. There are two

circumstances where the improper exclusion of evidence may establish a constitutional violation:

(1) when a state evidentiary rule categorically and arbitrarily prohibits the defendant from offering

relevant evidence vital to his defense; or (2) when a trial court erroneously excludes relevant

evidence that is a vital portion of the case and the exclusion effectively precludes the defendant

from presenting a defense. Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005) (citing

Potier, 68 S.W.3d at 659–62). Since the testimony at issue here was not categorically excluded

by a rule of evidence, we are concerned only with the second category and must determine whether

the exclusion of the witnesses’ testimonies effectively prevented Pena from presenting a defense.

37 Exclusion of J.M.’s Testimony

We first address Issue Seventeen, in which Pena argues that the trial court erred when it

did not allow his defense counsel to elicit testimony from J.M. about her purported anger toward

her mother for leaving her with her father. At trial, defense counsel asked J.M. on cross-

examination whether it made her angry that she had not lived with her mother for a long time,

which J.M. answered affirmatively. Defense counsel again asked whether that fact had made her

angry for a long time, which J.M. also answered affirmatively. When defense counsel asked

whether J.M. was angry that “[her mother did not] have [J.M.] with her,” the State objected on

relevance grounds and the trial court sustained the objection. Defense counsel attempted to

explain that this testimony would be relevant to show why J.M. had anger issues, but the trial court

overruled this explanation, and defense counsel then moved on to other topics.

On appeal, Pena argues that he was deprived of the ability to present the defensive theory

that J.M. had anger issues because her mother had left her, and not because Pena committed the

alleged sexual offenses against her. Yet, the substantially same question had already been asked

by defense counsel and answered by J.M. twice beforehand, and the trial court did not abuse its

discretion in prohibiting the question from being asked and answered a third time. See

Winegarner, 235 S.W.3d at 790 (if a trial court’s ruling excluding evidence is within the zone of

reasonable disagreement and is correct under any theory of law applicable to the case, we will not

reverse the trial court’s decision); Williams v. State, 566 S.W.2d 919, 925 (Tex. Crim. App. 1978),

overruled on other grounds by Rutledge v. State, 749 S.W.2d 50 (Tex. Crim. App. 1988) (where

similar questions are asked and answered without objection, the trial court’s error in sustaining the

State’s objection to defense witness’s testimony, if any, was harmless). As the State points out,

38 Pena was not prohibited from presenting evidence that J.M. was angry because she had not lived

with her mother by being prohibited from receiving an answer to that question for a third time, and

where that fact was established through other admitted testimony at trial. Thus, although the trial

court sustained the objection to the question on relevance grounds, its ruling was within the zone

of reasonable disagreement since the essentially same question had already been asked and

answered twice before, and we conclude that no abuse of discretion occurred. See Williams, 566

S.W.2d at 925.

Finally, assuming the trial court erred in sustaining the State’s objection to the proffered

testimony, we have a fair assurance that the exclusion of this testimony did not affect the jury’s

decision, or had but a slight effect because the fact that J.M. was angry at her mother for not being

with her had already been established through J.M.’s testimony. Thus, this evidence was before

the jury and he was not completely deprived of the ability to present the theory that J.M. had

emotional problems stemming from sources other than Pena’s alleged sexual abuse toward her.

See Potier, 68 S.W.3d at 666 (“[t]hat the defendant was unable to ... present his case to the extent

and in the form he desired is not prejudicial where ... he was not prevented from presenting the

substance of his defense to the jury”). Therefore, since we have a fair assurance that the trial

court’s ruling did not affect the jury’s decision or had but a slight effect, the trial court’s decision

did not affect Pena’s substantial rights and we must disregard the error, assuming one exists. See

TEX. R. APP. P. 44.2(b); Ray, 178 S.W.3d at 835; Potier, 68 S.W.3d at 666. Issue Seventeen is

overruled.

Exclusion of Testimony from Ruth Pena and Rube Arellano

In Issue Eighteen, Pena argues that the trial court erred when it excluded testimony

39 regarding J.M.’s purported sexual contact with other children. At trial, Pena first called Ruth

Pena, Pena’s wife and J.M.’s stepmother, and attempted to elicit testimony from her that J.M. had

engaged in inappropriate sexual behavior with her sisters. When defense counsel asked Ms. Pena

whether J.M. had told her that “she had been having some kind of sexual contact with other

individuals,” and asked about what exactly Ms. Pena had discovered, the State objected on the

grounds of relevance and improper character evidence. When the trial court sustained the

objections, defense counsel stated that the testimony was being offered to impeach J.M.’s

testimony that she had never had any sexual contact prior to Pena’s alleged sexual contact with

her. The trial court disregarded defense counsel’s argument and stated that the question called

for hearsay, again sustaining the State’s objections. During defense counsel’s subsequent bill of

exceptions, he stated that he intended to elicit testimony that J.M. had engaged in sexual contact

with her sisters, and that her testimony would have served to impeach J.M.’s purported testimony

that the incident did not occur.

Pena later called Rube Arellano, Pena’s neighbor, and attempted to elicit testimony from

her that J.M. had engaged in sexual contact with her minor daughter. The State objected that the

testimony called for details about “specific instances,” presumably of J.M.’s past sexual history,

and that it constituted improper character evidence. The trial court sustained the State’s objection

as to improper character evidence, and defense counsel subsequently elicited testimony from

Arellano that an unspecified incident occurred with J.M. and her daughter which caused Arellano

to keep J.M. away from her daughter. Defense counsel later made a bill of exceptions, stating

that he intended to elicit testimony that J.M. had engaged in sexual contact with Arellano’s

daughter by giving her “hickeys” on her chest.

40 On appeal, Pena argues that Arellano’s and Ms. Pena’s testimonies would have shown that

J.M. told her that she had engaged in sexual conduct with Arellano’s daughter and J.M.’s sisters,

and that J.M. thus obtained sexual knowledge from sources other than Pena’s alleged sexual abuse

toward her. We first address Arellano’s proposed testimony. At trial, the State objected to the

admission of this testimony because it constituted improper character evidence in violation of TEX.

R. EVID. 404, and it constituted evidence of the victim’s past sexual history in violation of TEX. R.

EVID. 412. The trial court sustained the objection on the basis of improper character evidence.

Under Rule 412, specific instances of a victim’s past sexual behavior are not admissible in

prosecutions for sexual assault, subject to certain exceptions. TEX. R. EVID. 412(a)(2). Since

Arellano’s testimony was not subject to one of these exceptions, such as impeachment under Rule

609, the testimony was inadmissible. See TEX. R. EVID. 412(b). Likewise, the testimony was

inadmissible under Rule 404 as improper character evidence because it was inadmissible under

Rule 412. See TEX. R. EVID. 404(a)(3)(A) (“[i]n a criminal case, subject to the limitations in Rule

412, a defendant may offer evidence of a victim’s pertinent trait”). As such, we conclude that the

trial court did not abuse its discretion in excluding Arellano’s testimony because it was

inadmissible under Rules 404 and 412. See TEX. R. EVID. 412(a)(2) (specific instances of a

victim’s past sexual behavior are inadmissible in prosecution for sexual assault); TEX. R. EVID.

404(a)(3)(A) (evidence of a victim’s pertinent trait is not admissible if it is inadmissible under

TEX. R. EVID. 412).

Pena further claims that the trial court improperly excluded Ms. Pena’s testimony that J.M.

had previously told her that she had engaged in sexual contact with her sisters because it would

have served to impeach J.M.’s testimony at trial, in which she denied the sexual incident with her

41 sisters occurred. Yet, Ms. Pena’s testimony would not have served as proper impeachment

evidence because J.M. did not testify that the incident with her sisters did not occur, but only that

she did not remember it happening. Since Ms. Pena’s testimony that the incident did occur was

not inconsistent with J.M.’s testimony that she did not remember the incident, it could not have

served to impeach her testimony. See TEX. R. EVID. 613. As such, Ms. Pena’s testimony

pertained to an out-of-court statement made by J.M. and was offered to prove the truth of the matter

asserted, i.e., that J.M. had sexual contact with her sisters. Therefore, the trial court correctly

concluded that Ms. Pena’s proposed testimony constituted inadmissible hearsay and properly

excluded it on that ground as well. See TEX. R. EVID. 801(d).

Even assuming the trial court improperly excluded the evidence, the record shows that Pena

was not precluded from presenting the defensive theory that J.M. had sexual knowledge from

sources other than Pena’s alleged abuse since J.M. testified that she had once been under the bed

where Pena and Ms. Pena were having sex, and that she had previously seen people having sex on

television. Thus, Pena was not completely prevented from presenting the theory that J.M. had

sexual knowledge originating from sources other than Pena’s alleged sexual abuse toward her.

Assuming the trial court erred by excluding Arellano’s and Ms. Pena’s testimonies, we again must

disregard the purported errors because we have a fair assurance that the trial court’s decisions did

not affect the jury, or had but a slight effect, and thus Pena’s substantial rights were not affected.

See TEX. R. APP. P. 44.2(b); Ray, 178 S.W.3d at 835; Potier, 68 S.W.3d at 666. Issue Eighteen is

Exclusion of Testimony from Carlos Pena

In Issue Nineteen, Pena contends the trial court erred when it excluded testimony from

42 Carlos Pena, J.M.’s grandfather, that J.M. had been dishonest about her allegations of sexual

assault against Pena, and that this evidence served as impeachment evidence against J.M.’s

testimony. On direct examination, defense counsel attempted to elicit testimony from Mr. Pena

that J.M. told him that she had told “five lies,” and that she had been “untruthful.” The State

argued that the testimony constituted inadmissible hearsay, and defense counsel responded that the

testimony was offered for impeachment, not for the truth of the matter asserted in the statement.

The trial court sustained the State’s hearsay objection, but defense counsel did not make a bill of

review as to what Mr. Pena’s intended testimony consisted of. On appeal, Pena again advances

the argument that Mr. Pena’s testimony was being offered for impeachment, and that the trial court

thus erred in sustaining the State’s hearsay objection.

As a preliminary matter, since defense counsel failed to make a bill of exception with

regard to Mr. Pena’s proposed testimony that J.M. was being untruthful about the allegations of

sexual abuse she made against Pena, he has not preserved this proposed testimony for appellate

review and we disregard Pena’s contention on appeal that Mr. Pena would have testified in this

manner. See TEX. R. APP. P. 33.1(a); London v. State, 490 S.W.3d 503, 508 (Tex. Crim. App.

2016) (a defendant has the burden to ensure the record on appeal is sufficiently developed to

resolve the issues presented, and a failure to do so precludes appellate review of a claim). Instead,

we only review Mr. Pena’s testimony contained in the record, i.e., that J.M. was being untruthful

in a general manner. See TEX. R. APP. P. 33.1(a); London, 490 S.W.3d at 508.

Pena argues that Mr. Pena’s testimony was being offered for impeachment, and therefore

did not constitute inadmissible hearsay. Yet, he does not point to any particular testimony from

J.M. that Mr. Pena’s testimony would have impeached, and the record simply does not indicate

43 whether the “five lies” J.M. purportedly told relates to her testimony at trial regarding the

allegations against Pena, or to some completely unrelated matter. Likewise, J.M.’s alleged

statement to Mr. Pena that “she had been untruthful” could pertain to anything, and Pena does not

direct us to any of J.M.’s testimony that Mr. Pena’s testimony would have served to impeach. As

such, the record is insufficiently developed and the issue is inadequately briefed for us to render a

complete and thorough analysis on whether Mr. Pena’s testimony was being offered as

impeachment, not for the truth of the matter asserted in the statement. See TEX. R. APP. P. 38.1(i).

We therefore construe J.M.’s purported out-of-court statements as being offered to prove the truth

of the matter asserted in the statements, i.e., that J.M. told five lies and that she was being untruthful

generally. As such, we conclude the trial court did not abuse its discretion in sustaining the State’s

hearsay objections at trial and excluding Mr. Pena’s testimony. See TEX. R. EVID. 801(d).

Even assuming the trial court erred in excluding Mr. Pena’s testimony, we conclude Pena

was not harmed by the error because he was not prevented from presenting his general theory

questioning J.M.’s honesty through other witnesses. For instance, Pena elicited testimony from

J.M. on cross-examination that she stole money from Pena and Ms. Pena, and from Ms. Pena,

J.M.’s counselor, and a forensic psychologist that J.M. would frequently lie, was diagnosed with

conduct disorder, and frequently exhibited deceptive and manipulative behavior. More

importantly, Pena himself challenged J.M.’s credibility as he testified in his defense that the

allegations of sexual abuse did not occur.

We conclude that Pena was able to present testimony from multiple witnesses challenging

J.M.’s credibility generally and with regard to her specific allegations. We fail to see how Pena

was precluded from presenting his defensive theory that J.M. was, by inference, dishonest about

44 the allegations of sexual abuse made against Pena. Assuming the trial court erred by excluding

Mr. Pena’s testimony, we again must disregard the error because we have a fair assurance that the

trial court’s decision did not affect the jury, or had but a slight effect, and thus Pena’s substantial

rights were not affected. See TEX. R. APP. P. 44.2(b); Ray, 178 S.W.3d at 835; Potier, 68 S.W.3d

at 666. Issue Nineteen is overruled.

PROCEDURAL ISSUES

In Issues One, Two, Three, Four, Five, Six, Fourteen, and Fifteen, Pena asserts a variety

of procedural issues. We will address these issues by topic and proceed out of numerical order.

Disclosure of Brady Materials

In Issues Five and Six, Pena argues that the State violated his due process rights when it

disclosed purported Brady v. Maryland material during the trial. On July 27, 2015, the State filed

its first notice of Brady material (referred to as Brady-1). These records were submitted for in

camera review on September 29, 2015, and the trial court entered an order finding that the

documents did not contain Brady material on June 8, 2016, two days before the trial’s voir dire

began. On the first two days of the guilt-innocence phase of the trial, June 13–14, 2016, the State

filed its second and third notice of Brady material (Brady-2 and Brady-3), respectively. An hour

after the State filed Brady-3, the defense filed a written motion for a continuance, requesting a

week to investigate the recently disclosed material.

Pena advances two issues related to these three disclosures. In Issue Five, Pena argues

that the State’s untimely disclosure of Brady material resulted in the defense’s inability to

effectively use the evidence to impeach J.M. In Issue Six, Pena contends that the trial court erred

when it failed to give the defense additional time to investigate, interview, and subpoena

45 impeachment witnesses disclosed by the State during the trial.

Brady Allegations

We first address Issue Five, whether the State violated Pena’s due process rights by the

disclosure of alleged Brady material during the trial. To establish a Brady violation, an appellant

must show that (1) the State was in possession of evidence and suppressed the evidence,

irrespective of the State’s good faith or bad faith in doing so; (2) the suppressed evidence is

favorable to the defendant; (3) the suppressed evidence is material, and that there is a reasonable

probability that had the evidence been disclosed, the outcome of the trial would have been

different; and (4) the evidence central to the Brady claim is admissible in court. Brady v.

Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963); Pena v. State, 353 S.W.3d

797, 809 (Tex. Crim. App. 2011). The State’s obligation to reveal Brady material to the defense

attaches when the information comes into the State’s possession, whether or not the defense

requested that information. Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006).

Favorable evidence is that which, if disclosed and used effectively, may make the difference

between conviction and acquittal, and includes both exculpatory and impeachment evidence.

Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999).

On review, we note that Brady-1 material contained information that J.M. had made an

allegation of sexual abuse against an unknown party while staying at a group home in Lubbock,

Texas. Pena contends that the records related to Brady-1 did not contain the name or contact

information of the person J.M. made an outcry against, and that the defense did not have access to

these records and could not obtain them on its own. In its order finding that the materials

contained in Brady-1 did not constitute Brady evidence, the trial court stated that “Attachment

46 ‘A’” consisted of audio recordings of interviews with employees of the treatment facility where

J.M. and J.P. were living at one point, which did not include any mention of J.M. or her brother,

J.P.; the trial court further stated that “Attachment ‘B’” contained a PDF of records for J.M. and

several other children. The trial court stated in its order that all material contained in both

attachments was unrelated to the case. Pena does not point to any evidence contradicting the trial

court’s finding. Thus, we conclude that he has not met his burden in establishing that the evidence

was favorable or material, or that the evidence would be admissible in court. See Brady, 373 U.S.

at 87; Pena, 353 S.W.3d at 809; see also Garcia v. State, No. 08-02-00085-CR, 2004 WL 1895184,

at *10 (Tex. App.—El Paso Aug. 25, 2004, pet. ref’d) (mem. op., not designated for publication)

(where claimed Brady evidence is not in the record, nothing is presented for an appellate court’s

review and an appellant does not satisfy his or her burden in showing that the evidence is favorable

or material).

Brady-2, which was disclosed during the morning of the first day of the guilt-innocence

phase, contained information that (1) former detective Maricela Barraza, who had been involved

in the investigation of the case and later became J.M.’s foster parent, reported that J.M. had

threatened to harm herself and occasionally engaged in manipulative behavior; (2) J.M. was

admitted for treatment to University Behavioral Health (UBH) and another psychological

treatment center; and (3) Detective Barraza was unable to leave J.M. alone with male members of

her family because she worried about J.M. making a false outcry of abuse against them. Pena

argues the State had possession of this information, basing this argument on his assertion that

Detective Barraza “was pre-trialed more than once” and that the “topic of fostering JM most

certainly came up in those conversations[.]” Yet, Pena points to nothing in the record to support

47 these contentions. While this evidence could have constituted impeachment evidence favorable

to the defense which could have led to a reasonable probability that the outcome of the trial would

have been different, there is nothing in the record to affirmatively show that the State previously

had possession of this evidence and failed to turn it over to the defense. See Harm, 183 S.W.3d

at 406–07 (Brady does not require the State to disclose exculpatory evidence that the State does

not have in its possession and that is not known to exist). Without more, we cannot say that Pena

has satisfied his burden in establishing that the State had possession of this information and failed

to turn it over to the defense. See id. Likewise, Pena has not established that this evidence would

have been admissible either, and thus the claimed violation regarding Brady-2 must fail for this

reason as well. See Pena, 353 S.W.3d at 809.

Brady-3, which was disclosed later during the second day of the guilt-innocence phase,

contained information that (1) while J.M. resided in the foster home of the Singh family, she was

removed from their care at their request because they were not able to handle her poor behavior;

(2) J.M. had made an outcry of physical abuse against the Singhs, and that J.M. had made an outcry

against one of the other foster children who had allegedly abused her or J.P.; and (3) a potential

witness in the case, Deputy Rafael Chavez, was under investigation concerning an allegation of

official oppression. Again, Pena does not point us to anything in the record establishing that the

State was in possession of this information other than stating that the “CPS workers involved in

this case were likely pre-trialed more than once.” We cannot say that Pena has satisfied his burden

in establishing that the State had possession of this information and failed to turn it over to the

defense. See id. Even if the State had possession of this information, Pena has likewise not met

his burden in establishing that the evidence was admissible or that a reasonable probability that

48 the outcome of the trial would have been different because there is nothing in the record to suggest

that the accusations against the Singhs or the other foster children were false, and because Deputy

Chavez was not called as a witness during the trial. See id.; see also Rodriguez v. State, No. 02-

14-00377-CR, 2015 WL 7717204, at *3 (Tex. App.—Fort Worth Nov. 25, 2015, pet. ref’d) (mem.

op., not designated for publication) (evidence that a child accused someone other than the

defendant of sexual abuse is not relevant or admissible absent evidence that such accusations were

false).

In sum, we conclude that the defense failed to meet his burden to establish the Brady factors

as to each of the three Brady disclosures. First, with Brady-1 material, Pena failed to establish

that the evidence was favorable or material, or that the evidence was admissible. Second, with

Brady-2 material, Pena failed to establish that the State had possession of the evidence and failed

to disclose it, or that the evidence would have been admissible. Finally, with Brady-3 material,

Pena failed to establish that the State had possession of this evidence, that the evidence would have

been admissible, or that the outcome of the trial would have been different had the evidence been

turned over to the defense. See Pena, 353 S.W.3d at 809-10. Issue Five is overruled.

Ruling on the Motion for Continuance

We now turn to Issue Six, regarding whether the trial court abused its discretion by failing

to grant the defense a week-long continuance to allow the defense to investigate the purported

Brady material disclosed by the State during the trial. After the State filed Brady-3 on the second

day of trial, the defense filed a written motion for a continuance, requesting a week to investigate

the recently disclosed material. After a bench conference, the trial court stated it was not yet

convinced that the late disclosure of Brady material prevented defense counsel from presenting its

49 defense, and it would not rule on Pena’s motion for a continuance at that time. Defense counsel

replied that “even a day[’s] continuance would help us to ... figure out whether it’s going to help

us or not.” After defense counsel asked for a “short break” to review the recently disclosed

material, the trial court responded that it may grant a continuance later in the trial, but again refused

to rule on Pena’s motion and stated that it wanted to proceed in the interest of concluding the trial

that week. Defense counsel did not object to the trial court’s decision to not rule on the issue.

During a bench conference at approximately 3:25 p.m. the next day, defense counsel stated,

“I’m going to re[-]urge my continuance, Your Honor. And I’m only re[-]urging for the

afternoon.” Later during the same bench conference, defense counsel again asked for a

continuance for the rest of the afternoon of June 15, 2016. The trial court then granted the

defense’s request and announced that court would be in recess until 8:30 a.m. the following

morning. Again, defense counsel did not object to the trial court’s decision not to rule on Pena’s

motion for a longer continuance.

On appeal, the State argues that Pena waived his right to complain about the trial court’s

denial of his original request for a week-long continuance because he abandoned it by later

requesting that the trial court continue the trial only for the period of that afternoon, which the trial

court subsequently granted. It also argues that Pena waived his right to raise the issue on appeal

because he failed to pursue an adverse ruling from the trial court on the issue. We agree.

A defendant’s failure to pursue an adverse ruling to his objection forfeits his right to

complain about the issue on appeal. See TEX. R. APP. P. 33.1; Mathis v. State, 67 S.W.3d 918,

927 (Tex. Crim. App. 2002); see also Tucker v. State, 990 S.W.2d 261, 263 (Tex. Crim. App.

1999) (a party who properly preserves a complaint for appellate review may waive or forfeit the

50 complaint at another time). Here, Pena initially requested a week-long continuance, but later

repeatedly asked for a continuance lasting only for the afternoon of June 15, 2016, which the trial

court granted. He likewise did not pursue an adverse ruling from the trial court on its decision to

not rule on the motion. As such, we hold that Pena waived his ability to complain about the issue

on appeal when he requested and then acquiesced to the trial court’s action, and by failing to pursue

an adverse ruling on his objection. See TEX. R. APP. P. 33.1; Dunn v. State, 819 S.W.2d 510, 525

(Tex. Crim. App. 1991) (defendant failed to preserve issue for appellate review when he

acquiesced to the trial court’s action contrary to his complaint).

Likewise, even if the error was preserved for review and the trial court erred by failing to

grant a week-long continuance, the rule of invited error may serve to waive a party’s complaint on

appeal by estopping the party from complaining on appeal about an alleged error that it induced at

trial. See Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999). In this case, defense

counsel initially made a written request for a continuance of one week, and then later repeatedly

requested a “short break” and for a continuance lasting for the remainder of the afternoon of June

15, 2016 instead. The trial court granted defense counsel’s later request by adjourning the trial

after 3:25 p.m. on that day, going into recess until the following morning. Under the rule of

invited error, we conclude Pena is estopped from complaining on appeal about the trial court’s

decision to only grant a continuance for the afternoon of June 15, 2016 when Pena’s trial counsel

induced the trial court’s action, and the trial court granted his request. See id. As such, we

decline to consider Pena’s issue on the merits. See id. at 531–32. Issue Six is overruled.

Voir Dire Issues

We now turn to Pena’s voir dire issues. In Issues One, Two, and Three, Pena argues that

51 the trial court abused its discretion by limiting the defense’s voir dire examination. In particular,

he argues that the trial court erred by (1) imposing unreasonable time limits on his voir dire

examination, (2) that this restriction denied him the opportunity to question the venire members

on proper areas of inquiry, and (3) that the restriction limited his effective use of peremptory

challenges and challenges for cause.

The conduct of voir dire rests largely with the sound discretion of the trial court. Cantu v.

State, 842 S.W.2d 667, 687 (Tex. Crim. App. 1992). As such, a trial court’s decision to deny a

party’s request for additional time for voir dire is reviewed for abuse of discretion. Id. A trial

court abuses its discretion when it prohibits a proper question during voir dire about a proper area

of inquiry. Sells v. State, 121 S.W.3d 748, 755–56 (Tex. Crim. App. 2003). A question is proper

if it seeks to discover a juror’s views on an issue applicable to the case. Id. at 756. Nevertheless,

a trial court may impose reasonable time limits on voir dire; otherwise, voir dire could continue

indefinitely. Id. at 755; Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002).

Restriction of Defense Counsel’s Time for Voir Dire

To show that a trial court abused its discretion in limiting a party’s voir dire examination,

the party must show that (1) counsel did not attempt to prolong voir dire, and (2) counsel was

prohibited from asking proper voir dire questions. Arredondo v. State, No. 08-08-00226-CR,

2010 WL 337678, at *1 (Tex. App.—El Paso Jan. 29, 2010, pet. ref’d) (not designated for

publication) (citing McCarter v. State, 837 S.W.2d 117, 119 (Tex. Crim. App. 1992)). In

addition, a party must preserve an alleged error in denying voir dire questions for appellate review

by showing that “he was prevented from asking particular questions that were proper.” Sells, 121

52 S.W.3d at 756 (emphasis in original). The denial of questions regarding a general area of inquiry

is “not enough” to preserve the error for review because the trial court might have allowed the

proper question had it been submitted for the court’s consideration. Id. Likewise, a party’s right to

ask questions is limited; for example, parties may not go on “fishing expeditions” by asking

questions such as “can you be fair and impartial under a given set of facts,” which do not provide

any concrete information for the intelligent use of peremptory or for-cause challenges. Barajas,

93 S.W.3d at 41.

In this case, prior to the beginning of voir dire, the trial court asked the parties

approximately how long they would need for their voir dire examinations. The State requested

an hour-and-a-half for its examination and reminded the court that the panel included one hundred

and seventy-five venire members. The court responded that it felt one hour would suffice initially

“to cover a lot of ground, because by an hour, I’m going to start to get antsy, and then at an hour

and 15, I might say, ‘You’re at an hour and 15.’” The court further added, “if you’re making good

use of your time, I probably will not say anything again until an hour and a half. But if you’re

not, then I’m going to start bugging you.” Pena’s trial counsel followed these remarks with his

agreement that an hour and a half was needed at minimum, but then stated, “I was thinking two

hours, at least.” The trial court replied that that was “[n]ot going to happen” and the parties should

plan for having an hour-and-a-half at most unless the panel is really talking or there are many

objections.

When the State’s voir dire reached an hour, the trial court commented, “You’re at an hour.”

Eighteen minutes later, the State completed its examination. During the examination by defense

counsel, the trial court interjected “you’re out of time, so what else do you have?” When defense

53 counsel replied that he wanted to ask about “language, photos” the court advised that the State had

already covered those topics, and did he have something new. Defense counsel replied, “[p]olice

officer credibility,” the “Fifth Amendment,” and the “range of punishment on indecency with a

child.” After these topics were listed and some back-and-forth, the trial court first stated it would

allow an additional ten minutes then extended the time to an additional fifteen minutes. The court

advised, “You’ve wasted a lot of time and taken a lot of time that you could have gone faster.”

Defense counsel responded that he had “gotten strikes” as people were speaking up. Returning

to his examination, defense counsel spoke about contrasting the range of punishment of the

indecency with a child charge as compared to his earlier discussion of the punishment range for

aggravated sexual assault of a child. Counsel described the lesser charge as having a range of

punishment of two to twenty years for acts including touching of the genitals of the child, or the

child touching the genitals of the adult male, with the intent to arouse. Focusing on individual

venirepersons, defense counsel asked each person he called either by their juror number, or their

name, or both, whether he or she could consider the minimum of two years on the offense charged.

After he spoke to more than thirty individuals, the court called time. All but two individuals

responded simply with a “yes,” thereby indicating they could consider the minimum punishment

of two years for an indecency charge.

As for the two that responded differently, venireperson Salido responded that he needed to

hear the facts first. Defense counsel explained he could not give him facts and repeated his

question about whether the venireperson could consider the minimum of two years having found

someone guilty of indecency with a child. He then responded, “Yes.” Defense counsel repeated,

“You could consider it?” Again, the panel member said, “Yes.” Second, venireperson 81 asked

54 for the question to be repeated then responded, “No.” Defense counsel asked him a second time,

“you could not?” Number 81 repeated his response of “No.” Defense counsel then continued,

and after he called on venireperson 175, the trial court stated, “That’s time, Mr. Morales. You

used more than 15 minutes, and you didn’t make good use of your time.”

Once the venire panel exited for a break, the trial court and defense counsel engaged in

some back-and-forth discussion regarding the efficiency of defense counsel’s voir dire, and

defense counsel expressed his belief that he had not been given sufficient time to conduct his

examination. The trial court and defense counsel voiced competing recollections of the amount

of time that the State and defense were given for their examinations:

[Defense counsel]: . . . I believe that the State went from about 1:00 to about 2:30.

[Trial court]: No, sir.

[Defense counsel]: And I started at about -- they went from about 1:00 to 2:15, 2:20.

I’m not sure exactly when. We took a break, came back at 2:30 or

so, I’m not sure on the exact time, and now it’s 3:40, and so not only

did I get less time --

[Trial court]: You did not get less time.

[Defense counsel]: So what were the times, Your Honor, as far as the -- we did start at

1:00. It’s now 3:40, and I know the State -- and I’m not saying the

State went long. I’m not criticizing the State for anything they did,

but I know they went over an hour.

[Trial court]: So the record is clear, you may have had the same amount of time,

but you didn’t make good use of your time. When I told [the

55 prosecutor] the same thing, she wrapped it up; when I told you

you’re not making a good use of your time, you decide to still delay.

So that’s your choice. That’s fine if you want to make a record, but

we need to get this going.

[Defense counsel]: There was no intent to delay. And I understand --

[Trial court]: I think there was an intent to delay, and that’s my finding. So you

want to make a record, what else did you have? Quickly, because

this is your time.

[Defense counsel]: Okay. I needed to ask the jurors whether they were going to hold it

against the defense if we were aggressively cross-examining the

complainant in this case.

[Trial court]: So that the record is clear, that was not a question you told me you

still needed to ask.

The trial court also stated that defense counsel had used one hour and four minutes of time before

the court interjected, then allowed an additional 15 minutes. The trial court contrasted that

examination with the one hour and eighteen minutes of time given to the State. The court repeated

it had observed that defense counsel did not use time wisely. After defense counsel made a bill

of exception with the additional questions he had wanted to ask, the court and parties proceeded

without incident with a second round of voir dire with another panel.

On appeal, Pena contends that the trial court abused its discretion in limiting the amount

of time for his voir dire, and that this in turn inappropriately limited his ability to explore relevant

areas of voir dire topics and resulted in his inability to effectively use peremptory challenges and

56 challenges for cause. The State counters that Pena did not properly preserve this issue for appellate

review because his request for additional time to ask questions was framed as a request to explore

the jury’s thoughts on improperly broad topics, such as “police officer credibility” and the “Fifth

Amendment,” as opposed to a request for more time to ask more specific questions. In particular,

the State cites Sells, 121 S.W.3d at 756, for the proposition that an appellant must show he was

prevented from asking particular questions to preserve the error for review, and that being

prevented from asking about a general area of inquiry is insufficient to preserve the error.

We find most of the defense counsel’s questions were not properly preserved for appellate

review. To properly preserve the issue for review, an appellant must show that the questions were

sufficiently particular, and that they were proper. Id. Here, defense counsel initially asked for

additional time to ask questions regarding police officer credibility, the Fifth Amendment, and the

range of punishment on indecency with a child. After the conclusion of his voir dire examination,

defense counsel then provided a record of questions he wanted to ask but was prevented from

asking by the court’s ruling:

(1) whether the jury could fairly consider the case if defense counsel aggressively

cross-examined the complainant;

(2) whether the jury could fairly consider the case where photographs of a child’s

vagina or anus might be presented;

(3) whether the use of words such as “vagina,” “anus,” and “penetration,” would

preclude them from deciding the case fairly;

(4) whether the jury could fairly decide the case if Pena did not testify;

(5) whether the jurors would assume the presence of sexual abuse where evidence

57 of physical abuse was presented;

(6) whether the jurors would convict a defendant of sexual abuse if the State failed

to prove sexual abuse but proved physical abuse;

(7) whether it is acceptable to hit a child; and

(8) about police officer credibility generally.

Questions One, Two, and Three were “ability to be fair” questions which amount to

improperly broad “fishing expeditions” which were not sufficiently specific to constitute proper

questions. See Barajas, 93 S.W.3d at 41. Questions Five and Six were improper commitment

questions. See Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001) (“[c]ommitment

questions are those that commit a prospective juror to resolve, or to refrain from resolving, an issue

a certain way after learning a particular fact”). Questions Seven and Eight were not particular

enough to preserve the questions for review. See Sells, 121 S.W.3d at 756. Thus, these questions

were improper and were not preserved for appellate review. See id.

Nonetheless, even if these questions were preserved for appellate review, we conclude that

the trial court’s refusal to allow the defense more time for its voir dire examination did not amount

to an abuse of discretion. For the reasons stated above, most of these questions were improper

because they were “ability to be fair” questions, improper commitment questions, or not

sufficiently particular; thus, the trial court did not err in precluding defense counsel from asking

them. See id. The only proper question, Question Four, regarding whether the panel could fairly

decide a case where the defendant had not testified, was a question defense counsel had already

covered with panel members, row by row, when he discussed the absence of a burden of proof on

defendant and his right to remain silent. See Chakravarthy v. State, 516 S.W.3d 116, 129–30 (Tex.

58 App.—Corpus Christi 2017, pet. ref’d) (mem. op.) (trial court did not abuse its discretion where it

prevented the defense from asking a question related to the defendant’s Fifth Amendment right

not to testify, and the question had been previously asked by the trial court or the State).

In addition, the record shows that after the voir dire of defense counsel reached one hour

of duration, the trial court gave defense counsel an additional fifteen minutes to ask questions

related to his additional areas of inquiry. On the record before us, the time given to defense for

its voir dire equaled or exceeded the time given to the State. Despite the disagreement about the

precise amount of time that each side was afforded, the trial court made a specific finding that

defense counsel intentionally delayed voir dire by inserting “a lot of pauses in between” his

questioning and with revisting a question even after receiving a response. The court described

that defense counsel failed to obtain a simple yes or no from jurors by number, and instead used

his time unwisely by re-stating a second time after receiving an answer a comment such as “[y]ou

couldn’t consider?” Affording proper deference to the trial court’s finding in light of the facts put

forth on the record before us, we are unable to say that the trial court abused its discretion in

limiting the amount of time that Pena had for voir dire examination based upon its explicit finding

that he intentionally prolonged voir dire. See McCarter, 837 S.W.2d at 119 (to show a trial court

abused its discretion in limiting a party’s voir dire examination, the party must show that (1)

counsel did not attempt to prolong voir dire; and (2) counsel was prohibited from asking proper

voir dire questions).

Trial counsel has a duty to reasonably budget his time, and a trial court’s decision to limit

counsel’s voir dire where he fails to do so does not constitute an abuse of discretion. See id.; Schott

v. State, No. 03-11-00446-CR, 2013 WL 1876535, at *5 (Tex. App.—Austin Apr. 30, 2013, no

59 pet.) (mem. op., not designated for publication); Tamez v. State, 27 S.W.3d 668, 672 (Tex. App.—

Waco 2000, pet. ref’d). No abuse of discretion occurs where the trial court is generous with the

time given to both parties and there is evidence that defense counsel delayed his voir dire

examination. See McCarter, 837 S.W.2d at 119; Chakravarthy, 516 S.W.3d at 130. Since the

record shows that the trial court extended the time given to both parties after providing a warning

at the one-hour mark, and that defense counsel for Pena delayed his voir dire examination by

proceeding in an inefficient manner and intended to ask improper voir dire questions, we conclude

that the trial court did not abuse its discretion in limiting Pena’s voir dire examination. See

McCarter, 837 S.W.2d at 119; Chakravarthy, 516 S.W.3d at 129–30; see also Arredondo, 2010

WL 337678, at *2–3 (trial court did not abuse its discretion in limiting defense counsel’s time for

voir dire where counsel spent an inordinate amount of time on few issues and thus prolonged his

voir dire).

Issue One is overruled.

Restriction of Defense Counsel’s Ability to Ask Questions or Use Challenges

Since the trial court did not err by limiting defense counsel’s voir dire examination, we

further conclude that the trial court’s limit of Pena’s time for voir dire did not inappropriately

restrict his ability to ask questions regarding relevant areas of voir dire inquiry, or inappropriately

restrict his ability to utilize peremptory challenges and challenges for cause. See Chakravarthy,

516 S.W.3d at 130 (finding no abuse of discretion by the trial court regarding the defense’s abilities

to ask certain questions or use peremptory challenges and challenges for cause where trial court

did not err by limiting the defense’s time for voir dire).

Issues Two and Three are overruled.

60 Motion for a New Trial

In Issue Four, Pena argues that the trial court abused its discretion when it failed to hold a

hearing on his motion for a new trial. He contends that the trial court erred because (1) the jury

had received evidence not presented at trial after deliberations had started; (2) a juror withheld

information that she was a sexual abuse victim; (3) evidence disclosed by the State during trial

could have been used by the defense; and (4) the State presented perjured testimony during the

trial.

In response, the State counters that because Pena’s motion for a new trial did not contain a

request for a hearing on the motion, the trial court was not required to hold a hearing and did not

abuse its discretion in failing to do so, citing for that proposition Ramos v. State, No. 01-01-00980-

CR, 2003 WL 164456, at *1 (Tex. App.—Houston [1st Dist.] Jan. 23, 2003, pet. ref’d) (mem. op.,

not designated for publication). In Ramos, the defendant filed a motion for a new trial alleging

ineffective assistance of counsel, and the trial court denied his motion without holding a hearing

on the motion. Id. The motion itself did not contain a request for a hearing on the motion, but

only requested a new trial. Id. Our sister court in Houston held that the trial court did not abuse

its discretion in failing to hold a hearing on the motion, reasoning that when a movant does not

request a hearing, the trial court is not required to convene a hearing sua sponte on a motion for a

new trial. Id. (citing Gallegos v. State, 76 S.W.3d 224, 228 (Tex. App.—Dallas 2002, pet. ref’d);

Brooks v. State, 894 S.W.2d 843, 847 (Tex. App.—Tyler 1995, no pet.)).

We are faced with a practically identical situation here. A trial court ordinarily abuses its

discretion when it fails to hold a hearing on a motion for a new trial when the defendant makes a

request for a hearing on the motion. Martinez v. State, 74 S.W.3d 19, 21–22 (Tex. Crim. App.

61 2002). Yet Pena’s motion for a new trial, alleging various grounds for granting the motion,

requested that the trial court grant him a new trial, but made no request for the trial court to conduct

a hearing on the motion. The record does not indicate that Pena made such a request elsewhere.

As such, we conclude that the trial court did not abuse its discretion when it declined to hold a

hearing on Pena’s motion for a new trial because the trial court was not required sua sponte to do

so.3 See Ramos, 2003 WL 164456, at *1; Gallegos, 76 S.W.3d at 228; Brooks, 894 S.W.2d at

847. Issue Four is overruled.

Motion for Mistrial

In Issues Fourteen and Fifteen, Pena argues that the trial court abused its discretion by

failing to grant a mistrial following two sustained objections. First, in Issue Fourteen, the State

asked Pena on cross-examination whether his parental rights of three of his other children had been

terminated. The trial court sustained Pena’s objection that the prejudicial value outweighed the

probative value of the question and instructed the jury to disregard the question. Second, in Issue

Fifteen, the State asked Ruth Pena, Pena’s wife, whether Pena had previously been convicted of

assault-family violence against her. Pena’s counsel objected to the question as being improper

and factually incorrect given that Pena had received deferred adjudication. The court sustained

the objection and instructed the jury to disregard a portion of the question.

3 As our sister courts deciding these cases did not address the substantive issues contained within the motions for a new trial at issue in those cases, we also decline to address the issues contained within Pena’s motion for a new trial on the merits. See Ramos, 2003 WL 164456, at *1; Gallegos, 76 S.W.3d at 228; Brooks, 894 S.W.2d at 847. Likewise, because the issues contained within Pena’s motion for a new trial are not raised as separate issues in his brief, we decline to consider them on the merits for this reason as well. See TEX. R. APP. P. 38.1(f); Garrett v. State, 220 S.W.3d 926, 928 (Tex. Crim. App. 2007) (“Rule 38.1 requires that an appellant designate all issues for review in the original brief.”).

62 When, as here, a trial court sustains an objection and instructs the jury to disregard but

denies a defendant’s motion for a mistrial, we consider whether the trial court abused its discretion

in denying the mistrial. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). We will

not disturb the trial court’s ruling on the motion for mistrial if it was within the zone of reasonable

disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). “Only in extreme

circumstances, where the prejudice is incurable, will a mistrial be required.” Id. (quoting

Hawkins, 135 S.W.3d at 77). As such, a mistrial is appropriate when the improper conduct in

question is so harmful that the case must be redone. Hawkins, 135 S.W.3d at 77. In most

instances, the trial court’s instruction to disregard the improper statement will cure the alleged

harm. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S.

944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001).

In considering whether the trial court abused its discretion by failing to grant a mistrial,

we consider three factors: (1) the severity of the conduct or prejudicial effect; (2) curative

measures; and (3) the certainty of the conviction absent the misconduct. Hawkins, 135 S.W.3d at

77 (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)).

Termination of Parental Rights

During the guilt-innocence phase of trial, the defense called Pena to testify. Pena testified

that he had six children, including J.M. and J.P., and that he had gained custody over J.M. and J.P.

when their biological mother had asked him to take them from her custody. Pena stated that J.M.

was in poor physical health when he picked her up, and he took measures to restore her health,

such as buying medication for her and taking her to doctors. As Pena testified, he began sobbing

because he felt guilty at the time for leaving them. On cross-examination, Pena testified that he

63 had three other children in addition to J.M. and J.P. but he did not have full custody of the other

three.

When the State asked Pena whether his parental rights to the children other than J.M. and

J.P. had been terminated, defense counsel objected and asked to approach the bench. During the

ensuing bench conference, defense counsel argued that the testimony was irrelevant and that its

probative value was significantly outweighed by the risk of unfair prejudice. The State responded

that Pena attempted to portray himself as a good father who had a good relationship with his

children, and yet had testified that he did not have custody of three of his children. The trial court

agreed with defense counsel and sustained his Rule 403 objection, and upon his request instructed

the jury to disregard the State’s question. The trial court denied the defense’s subsequent request

for a mistrial.

On appeal, Pena contends the trial court abused its discretion in failing to grant the

defense’s request for a mistrial because the State’s question inflamed the passions of the jury, and

because the inculpatory evidence against Pena was “marginal at best.” The State counters that

the prosecutor properly asked the question to rebut Pena’s direct testimony that he had a positive

relationship with his children.

We find that the trial court did not abuse its discretion by denying Pena’s motion for

mistrial. On review, we note that the trial court immediately instructed the jury to disregard the

State’s question and the issue was not raised again at trial. Further, there is no evidence in the

record suggesting that the question impacted the jury or its verdict. While Pena received the

maximum available punishment for the indecency with a child charge (twenty years’

incarceration), he received twenty years’ incarceration for his conviction for aggravated sexual

64 assault of a child, or well below the statutory maximum punishment for that offense. See TEX.

PENAL CODE ANN. §§ 12.32, 12.33, 21.11(d), 22.021(a)(2)(B) (maximum punishment for

indecency with a child by contact, a second-degree felony, is twenty years’ incarceration, while

the maximum punishment for aggravated sexual assault of a child, a first-degree felony, is life

imprisonment); see also Durant v. State, No. 08-11-00168-CR, 2013 WL 2922267, at *4 (Tex.

App.—El Paso June 12, 2013, no pet.) (not designated for publication) (a jury’s punishment

assessment below the statutory maximum for a particular offense suggested that a prosecutor’s

improper question did not impact the jury or its verdict).

Thus, while the potential for unfair prejudice existed as a result of the prosecutor’s

question, the trial court took immediate curative actions by instructing the jury to disregard, and

there is no evidence that the State’s question impacted the jury’s verdict. Pena has not

demonstrated that the State’s conduct was so harmful that the case must be redone, and we

conclude the trial court did not abuse its discretion in denying Pena’s request for a mistrial such

that its decision was outside the zone of reasonable disagreement. See Hawkins, 135 S.W.3d at

77; see also Durant, 2013 WL 2922267, at *4 (trial court did not abuse its discretion in denying

defendant’s motion for mistrial where no residual prejudice existed after defendant’s objections

and the trial court’s curative instruction to disregard, and where the defendant’s punishment for

the charged offense was well under the statutory maximum punishment for the offense). Issue

Fourteen is overruled.

Conviction of Family Violence

Finally, we consider Issue Fifteen, in which Pena argues that the trial court abused its

discretion in failing to grant a mistrial after the State asked Pena’s wife, Ruth Pena, whether Pena

65 had been convicted of family violence committed against her. During the guilt-innocence phase

of trial, Pena called Ms. Pena to testify. Ms. Pena stated that she and Pena were unable to live

together without conflict because of the problems they were having with Pena’s children,

especially J.M. On cross-examination, the prosecutor asked Ms. Pena if she had separated from

Pena because of the problems J.M. caused, which Ms. Pena again confirmed. The State then

asked whether Ms. Pena had remembered making a police report, and defense counsel objected

and asked to approach the bench.

During the ensuing bench conference, the prosecutor announced her intent to elicit

testimony that Pena had previously pled guilty to a charge of assault-family violence against Ms.

Pena, and that he was placed on deferred adjudication for committing that offense. The

prosecutor further stated that Pena’s conviction was at issue because the defense had left the

impression that Ms. Pena had separated from Pena because of issues with J.M. Over Pena’s

relevance objection, the trial court stated that the defense had opened the door to testimony

regarding the incident by leaving a false impression with the jury, and it allowed the prosecutor to

ask whether Ms. Pena had made a report of family violence against Pena but not to “get into all

the great details.” When cross-examination resumed, the prosecutor asked Ms. Pena whether she

had made a report of family violence against Pena, she responded that she had called 911. When

the prosecutor asked Ms. Pena whether Pena had been “convicted” of family violence against her,

defense counsel objected to the question being incorrect, and the trial court sustained the objection.

Defense counsel asked for an instruction to disregard the prosecutor’s question, which the trial

court gave, but the trial court denied the defense’s motion for a mistrial immediately following the

trial court’s instruction to disregard.

66 On appeal, Pena argues that the trial court abused its discretion by failing to grant his

motion for mistrial, advancing essentially the same arguments mentioned in the preceding issue.

The prosecutor’s question regarding whether Pena had been convicted of family violence was

prejudicial and inappropriate, as the trial court had directed the prosecutor to only ask whether Ms.

Pena had made a report of family violence against Pena. Yet, the trial court sustained the

objection and took immediate curative measures by instructing the jury to disregard the question.

Again, there is no evidence suggesting that the question affected the jury or its verdict because the

assigned punishment for the aggravated sexual assault of a child charge was well beneath the

statutory maximum punishment. See Durant, 2013 WL 2922267, at *4 (finding “by the narrowest

of margins” that a prosecutor’s questions regarding a defendant’s charge that had been dismissed

were inappropriate, but “fell short of qualifying as severe”).

Again, Pena has not demonstrated that the State’s conduct was so harmful that the case

must be redone, and we conclude that the trial court’s decision to deny the motion for mistrial was

within the zone of reasonable disagreement and no abuse of discretion occurred. See Hawkins,

135 S.W.3d at 77; see also Durant, 2013 WL 2922267, at *4 (trial court did not abuse its discretion

in denying defendant’s motion for mistrial after State improperly asked defendant about his

dismissed criminal charges because no residual prejudice existed after defendant’s objections and

the trial court’s curative instruction to disregard, and because the defendant’s punishment for the

charged offense was well under the statutory maximum punishment for the offense). Issue Fifteen

is overruled.

Having overruled Issues One through Nineteen, we affirm the judgment of the trial court.

67 GINA M. PALAFOX, Justice March 27, 2019

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)