COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ————————————
No. 08-24-00390-CR ————————————
Andrew Thomas Vidal, Appellant
v.
The State of Texas, Appellee
On Appeal from the 175th District Court Bexar County, Texas Trial Court No. DC2021CR6014
M E MO RA N D UM O PI NI O N 1 Appellant Andrew Thomas Vidal appeals his conviction for continuous sexual abuse of a
child. Vidal brings four issues on appeal: (1) the trial court committed “fundamental” error by
1 This case was transferred from the Fourth Court of Appeals pursuant to a docket equalization order issued by the Supreme Court of Texas. See Tex. Gov’t Code Ann. § 73.001. We apply the precedent of the Fourth Court of Appeals to the extent it conflicts with our own. See Tex. R. App. P. 41.3.
1 making prejudicial comments during voir dire; (2) the prosecutor made improper closing
arguments; (3) the trial court erred in excluding evidence; and (4) the trial court improperly
designated an outcry witness. 2 Finding no reversible error, we affirm.
I. BACKGROUND
Because Vidal does not challenge the sufficiency of the evidence to support his conviction,
we set forth only an abbreviated factual background.
Vidal was charged with two counts of sexual abuse of his stepdaughter, M.N. 3 Count I
charged Vidal with continuous sexual abuse of a child, which requires two or more acts of sexual
abuse of a child younger than 14, by a person at least 17 years of age, over a period of at least 30
days. Tex. Penal Code Ann. § 21.02(b). An “act of sexual abuse” includes sexual assault, which
includes any contact between the genitals of a child and the mouth or genitals of another person.
Tex. Penal Code Ann. § 22.021. The indictment alleged four undated acts of contact by Vidal with
M.N.’s genitals—including manual-vaginal contact, oral-vaginal contact, manual-vaginal
penetration, and oral-vaginal penetration—between August 1, 2015, and August 1, 2017, when
Vidal was 43–45 years old and M.N. was 11–13 years old. Count II charged Vidal with indecency
with a child by touching M.N.’s breast on or about August 1, 2016. Tex. Penal Code Ann.
§ 21.11(c).
During a 7-day jury trial, M.N. testified to three specific incidents involving oral-vaginal,
manual-vaginal, and manual-penile contact when she was 12 and 13 years old. Vidal did not testify
2 In his statement of the issues, Vidal lists seven issues that are briefed as four issues. Issue four (improper striking at Vidal over shoulders of defense counsel during closing argument) is briefed together with issue three (improper closing arguments). Issues six and seven (violation of right to present a defense and confront witnesses) are briefed together with issue five (exclusion of evidence), all of which complain of the same ruling as to evidence of prior sexual history. 3 To protect her privacy, we refer to the complaining witness by her initials. Tex. R. App. P. 9.10(a)(3) (sensitive information includes the name of a person who was a minor at the time of the offense).
2 but he introduced numerous character witnesses to discredit M.N. and to establish the evidence
against him was not plausible. The jury charge included three undated incidents of oral-vaginal
penetration, manual-vaginal penetration, and oral-vaginal contact. The jury returned a verdict
finding Vidal guilty on both counts. The jury assessed a sentence of 35 years’ confinement for
Count I and 5 years’ confinement for Count II, to be served concurrently. The trial court entered
judgment accordingly. This appeal followed.
II. FUNDAMENTAL ERROR
In his first issue, Vidal argues that the trial court committed fundamental and structural
error by making prejudicial comments during voir dire in violation of Tex. Code Crim. Pro. Ann.
art. 38.05 and the Texas and U.S. Constitutions.
A. Standard of review and applicable law
Whether the trial court violated Article 38.05 and the constitutional right to the presumption
of innocence and to a fair and impartial trial are questions of law that we review de novo. Guzman
v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997) (en banc).
Improper comments by a trial judge constitute a “fundamental error,” in the sense that they
may be raised on appeal regardless of whether defense counsel objected at trial. Proenza v. State,
541 S.W.3d 786, 796 (Tex. Crim. App. 2017). That is, they are “at least a category-two, waiver-
only right.” Id. at 801 (citing Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) (en banc)).
The trial court’s impartiality and the defendant’s right to be tried in a proceeding “devoid of
improper judicial commentary” is “fundamental to the proper functioning of our adjudicatory
process.” Id. at 799.
Article 38.05 of the Texas Code of Criminal Procedure provides that a trial court judge
shall not “at any stage of the proceeding previous to the return of the verdict, make any remark
3 calculated to convey to the jury his opinion of the case.” Tex. Code Crim. Pro. Ann. art. 38.05. To
constitute reversible error, a violation must be harmful. Proenza, 541 S.W.3d at 791.
The U.S. Constitution entitles defendants to an impartial tribunal and prohibits comments
in front of the jury that effectively destroy a defendant’s constitutional presumption of innocence.
U.S. Const. amend. V, XIV; Irsan v. State, 708 S.W.3d 584, 607 (Tex. Crim. App. 2025). The Texas
Constitution provides similar protection. Blue v. State, 41 S.W.3d 129, 134 (Tex. Crim. App. 2000)
(en banc) (Mansfield, J., concurring) (citing Tex. Const. art. I, § 10); cf. Brumit v. State, 206 SW3d
639, 645 n.3 (Tex. Crim. App. 2006) (whether Texas Constitution provides distinct protection not
addressed).
B. The judge’s comments 4
Vidal complains of the following remarks during voir dire:
These cases are difficult. It’s difficult for some people to hear some of these things. It’s difficult because some people unfortunately have been through things like this. It’s difficult because some people might have been accused or know somebody accused of things like this. This is difficult. Nobody is hiding that from you. These are not easy cases. All right.
But it’s important that you understand what we’re doing here and that presumption of innocence. Don’t let that slip by because you hear something horrible about a charge. Please, Ladies and Gentlemen, don’t.
. . .
Now, this exercise that we’re doing today has a lot to do with people that cannot be fair for whatever reason. Not because your schedule conflicts or you have stuff going at work or something like that, because a crime like this has touched you in a certain way. And, unfortunately, it’s touched too many. All right [emphasis added].
In general terms, like sexual abuse of a child, if you have known anybody that’s gone through that, if you yourself have gone through that, if you’ve been accused of that or something like that, that’s the meat of what they are trying to decide with you today. Is there anything like that in your life that we certainly can’t know about,
4 The trial was heard by the presiding judge of the 175th District Court, Hon. Cathy Torres-Stahl, and two visiting judges. Vidal complains only of comments during voir dire by a visiting judge, Hon. Kevin O’Connell.
4 we don’t know about but you know about that you need to share with them so they can make a decision on whether you’re fit to serve, qualified to serve.
[D]ue to the nature of the charge, we lose so many jurors who just say, “I don’t want to hear it, Judge. Kevin, I just don’t want to hear it. I don’t want to hear about sexual abuse.” Well, you know what, I don’t either.
C. Analysis
First, we consider whether the challenged remarks amount to improper comments
conveying to the jury the trial court judge’s “opinion of the case,” as prohibited by Tex. Code Crim.
Pro. Ann. art. 38.05. If we conclude that a remark is prohibited, we then consider whether it was
harmful. Second, addressing Vidal’s alternative complaint, we consider whether the comments at
issue violated his constitutional rights.
(1) The propriety of the trial court’s comments
Vidal contends the trial judge’s comments during jury selection violated Article 38.05 and
his Due Process rights. He argues the trial court “set an unfavorable tone” in commenting generally
about the presumption of innocence and commenting specifically about the type of case at issue.
In effect, he claims the challenged remarks resulted in the trial court conveying an opinion about
the case that favored the State and harmed the defense. The State disputes Vidal’s description of
the trial judge’s remarks, maintaining that the judge conveyed no improper opinion and violated
no rights.
(a) What is a prohibited “opinion of the case”?
The parties’ competing arguments call into question the proper interpretation of the phrase
“calculated to convey to the jury his opinion of the case.” Tex. Code Crim. Pro. Ann. art. 38.05.
Despite their opposing views, neither party offers a definition of this statutory phrase. Over time,
5 courts have interpreted the prohibition as applying to any stage of the proceeding—not just the
guilt or innocence phase.
For example, an “opinion of the case” includes a statement that “implies approval of the
States argument,” “indicates [] disbelief in the defense’s position,” or “diminishes the credibility
of the defense’s approach to[] the case.” Clark v. State, 878 S.W.2d 224, 226 (Tex. App.—Dallas
1994, no pet.); see, e.g., Knox v. State, 13 S.W.2d 378, 379 (Tex. Crim. App. 1929) (opinion of the
case necessarily includes an “opinion of the witnesses as well as their testimony”). The Court of
Criminal Appeals has explained that Art. 38.05 should be construed along with the jury-charge
statute, which prohibits the trial court from “expressing any opinion as to the weight of the
evidence.” Tex. Code Crim. Proc. art. 36.14; Proenza, 541 S.W.3d at 791 n.11. 5 The “primary
reason” for the jury-charge rule is that an instruction by the judge as to the weight of the evidence
reduces the State’s burden of proof. Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003).
Art. 38.05 extended that rationale to prohibit any comments and even non-verbal conduct by the
judge that the jury “may interpret as shedding light upon his view of the weight of the evidence,
or the merits of the issues.” Id. (quoting Lagrone v. State, 209 S.W. 411, 415 (Tex. Crim. App.
1919)). Like a jury instruction on the weight of the evidence, a comment conveying an “opinion
of the case” encompasses a spectrum of comments: on the “far end” are comments that expressly
alter the State’s burden and presumption of innocence; on the “near end” are comments that
“obliquely or indirectly convey some opinion on the weight of the evidence by singling out that
evidence and inviting the jury to pay particular attention to it.” Brown, 122 S.W.3d at 797. For
example, Brown held that a “mild, neutral, and an obvious common-sense proposition” in a jury
5 The language of Art. 36.14 was adopted in the “Old Code” of 1857, Art. 594, and is similar to a 1853 statute. Tex. & P. Ry. Co. v. Murphy, 46 Tex. 356, 366–67 (1896) (citing Paschal’s Dig., art. 1464). The language of Art. 38.05 was adopted in the Code of 1879. See 1879 Penal Code and Code of Criminal Procedure, 16th Leg., R.S., § 2, art. 729.
6 charge—which advised the jury that intent or knowledge may be inferred by acts done or words
spoken—fell “marginally” outside the prohibition on judicial comments because it was “simply
unnecessary” and “focus[ed] the jury’s attention on the type of evidence that may support a finding
of criminal intent.” Id. at 802.
Given the extent of comments that could convey an opinion of the case, the effect of Article
38.05 is to prohibit many judicial comments that are “insignificant in the context of a particular
trial.” Proenza, 541 S.W.3d at 800. Still, whether such violations require reversal goes to harmful
error. See Irsan, 708 S.W.3d at 606.
(b) General comments on the presumption of innocence
Vidal asserts that the trial court’s explanation of the presumption of innocence was
improper in its entirety. The rules do not expressly permit trial courts to make oral comments
regarding issues such as presumption of innocence in non-capital cases. All instructions on the law
must be in writing. Tex. Code Crim. Proc. Ann. § 36.14. Trial judges are permitted, and required,
to examine the venire in capital cases regarding five general principles of law—reasonable doubt,
burden of proof, presumption of innocence, indictment, and “opinion.” Tex. Code Crim. Proc. Ann.
§ 35.17(2). The Court of Criminal Appeals has concluded from this provision that trial courts are
permitted but not required in non-capital cases to both examine and provide “explanations” of
these principles during voir dire. Dent v. State, 504 S.W.2d 455, 457 (Tex. Crim. App. 1974) (citing
Hon. John F. Onion, Special Commentary, Tex. Code Crim. Proc., Art. 36.17. Trial judges have
long been permitted to lecture the venire and the jury “as to their general duties”; such lectures
“confined to generalities” are generally not construed as instructions under Article 36.14 or
opinions of the case under Article 38.05. 24 Tex. Jur. 3d Criminal Procedure: Trial § 71 (citing
7 cases). Based on this longstanding precedent, the trial court’s comments regarding the presumption
of innocence were generally permissible. See Dent, 504 S.W.2d at 457.
(c) Specific comments regarding the type of case
Vidal contends the trial court’s explanation of Vidal’s important constitutional right “was
watered down by the judge’s additional comments about these cases being difficult.” The judge
stated to the venire: “These cases are difficult. . . . These are not easy cases.” Remarks of this type
were made several times. Vidal further argues the trial court expressed to the jury that “a crime
like this has touched you” and “unfortunately, its touched too many.” He contends these specific
remarks relayed that a crime had in fact been committed; and they expressed a biased opinion that
charges of this type are difficult to hear about and sexual assaults of children are happening too
often.
“In the Texas adversarial system, the judge is a neutral arbiter between the advocates; he
is the instructor in the law to the jury, but he is not involved in the fray.” Brown, 122 S.W.3d at
797. Given this role, “a trial judge must . . . refrain from making any remark calculated to convey
to the jury his opinion of the case.” Id. at 798. Improper opinions can be conveyed indirectly in
the form of a general proposition. Id. at 801. As courts have long-advised, “[t]rial judges should
be very guarded in their verbal statements or comments upon the testimony to and in the presence
and hearing of the jury in order to avoid impressing the jury with the idea that the court entertained
any impressions of the case which he wished them to know[.]” Linton v. State, 291 S.W. 250, 251
(Tex. Crim. App. 1927)). In determining whether comments are improper, reviewing courts
evaluate them from the jury’s perspective, asking whether the remarks impermissibly strengthened
the State’s case or weakened the defense’s. Brown, 122 S.W.3d. at 804; Clark, 878 S.W.2d at 226.
8 As relevant here, courts have found similar comments at voir dire to be improper. See
Drake v. State, 465 S.W.3d 759, 762 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (comments
about “difficulty in selecting a jury for this type of case” involving child pornography violated
Article 38.05 and was harmful); In re Commitment of Stuteville, 463 S.W.3d 543, 557–58
(Tex. App.—Houston [1st Dist.] 2015, pet. denied) (Jennings, J., concurring) (comments on
pedophilia case were improper and put “thumb on the scale of justice”); Rivera v. State, No. 01-
24-00030-CR, 2025 WL 3028898, at *1 (Tex. App.—Houston [1st Dist.] Oct. 30, 2025, no pet.)
(mem. op., not designated for publication) (“this is not going to be a big controversial case or
anything, not in my opinion” assumed to violate Article 38.05 but found harmless); see also In re
Slaughter, 480 S.W.3d 842, 847–51 (Tex. Spec. Ct. Rev. 2015) (public comment that child
pornography case was one of “difficult types of cases” went “beyond mere factual statements of
events occurring in the courtroom and add[ed] the judge’s subjective interpretation”).
Here, the trial court’s comments went beyond a neutral and evenhanded description of the
nature of the case. The court remarked to the venire that the purpose of voir dire was to identify
those who could not be fair, “[n]ot because your schedule conflicts or you have stuff going on at
work or something like that, because a crime like this has touched you in a certain way. And,
unfortunately, it’s touched too many.” (Emphasis added.) From the perspective of the venire, we
find the remarks lent weight to the State’s case and diminished Vidal’s presumption of innocence.
They marginally fall on the wrong side of the scale because they were unnecessary and failed to
clarify the law for the jury. Although the judge referred once to the “charge” and suggested that
“being accused” was also difficult, the substance of his comments was that prospective jurors
would have difficulty hearing and discussing the evidence presented by the State should they be
selected for the jury. A trial judge should not suggest to the jury that a crime has been committed
9 when the State has yet to present any evidence. Compounding the error, the court also remarked
that the crime had “touched too many.”
We conclude that the trial court’s remarks regarding the nature of the case or type of case
were improper. Tex. Code Crim. Proc. Ann. 38.05; Brown, 122 S.W.3d at 803; Clark, 878 S.W.2d
at 226.
(2) Comments were not harmful
To obtain a reversal based on an Article 38.05 violation, the defendant must show that the
violation was “harmful, that is, it affected his ‘substantial rights.’” Irsan, 708 S.W.3d at 606;
Tex. R. App. P. 44.2(b). 6 Neither party has the burden to prove or disprove harm; instead, it is the
responsibility of the reviewing court, once it concludes there was error, to determine whether the
error affected the judgment. Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001) (en banc).
Courts have held that inadvertent comments suggesting that a crime was committed are not
harmful. In Irsan, the trial judge remarked during voir dire, in the process of admonishing the
venire panel not to do independent research, “At one time, there was quite a bit of publicity about
the case. The case was unsolved for a couple of years. And then when it was solved, there was
more publicity about it.” Irsan, 708 S.W.3d at 605. “The comment was brief, the trial judge later
emphasized the importance of the presumption of innocence.” Id. at 607. In particular, the trial
judge had the defendant stand and instructed the jury “[y]ou should see him now as an innocent
person . . . Is there anyone who could not give Mr. Irsan that all-important presumption of
6 Some cases recite two formulations of harmful error under Article 38.05: whether the comment is “reasonably calculated to benefit the State or prejudice the defendant’s rights,” and whether the comment “affect[ed] substantial rights.” Irsan v. State, 708 S.W.3d 584, 606 (Tex. Crim. App. 2025) (citing Proenza v. State, 541 S.W.3d 786, 801 (Tex. Crim. App. 2017); Tex. R. App. P. 44.2. The analysis is the same. See id. The first formulation was adopted before the 1997 articulation of the harmful-error rule in Tex. R. App. P. 44.2. Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (en banc) (explaining that the phrase “calculated to injure the rights of defendant” means “no more than that there must be some harm”); see 43B Tex. Prac. Criminal Practice And Procedure § 56:183 (review of harm under pre-1997 caselaw is “not as part of the error criterion but rather in harmless-error analysis to be conducted only after error is found”).
10 innocence?” Id. at 605–06. The Court concluded, “All in all, the record does not show that the trial
judge’s off-the-cuff remark affected Appellant’s substantial rights.” Id. at 607. See also Rodriguez
v. State, 728 S.W.3d 228, 232, 238 (Tex. App.—Houston [1st Dist.] May 8, 2025, pet. ref’d)
(comment to venire that “when individuals stop breaking the law we might get caught up” was not
harmful “in light of the whole record—which includes defense counsel’s admission that this trial
related to a crime, as well as the instructions from the trial court during voir dire and in the jury
charge about the proper functioning of a trial”).
Inadvertent comments regarding the “difficulty” of the case have also been found harmless.
In one case, a trial judge’s remark to the venire that “this is not going to be a big controversial case
or anything, not in my opinion” was harmless where the judge instructed the jury at length on the
presumption of innocence, both before and after the comment. Rivera, 2025 WL 3028898, at *1.
However, a more extensive comment in a child pornography case did amount to reversible error.
Drake, 465 S.W.3d at 762 (Tex. App.—Houston [14th Dist.] 2015, no pet.). There, the judge
initially told the venire “there is a good chance that if you are on the jury, you are going to have to
look at child pornography.” It was undisputed that sexual abuse of a child had occurred and that
the defendant had filmed it; the defendant merely contended that she was forced to participate.
After one panel member stated she could not view child pornography on religious grounds, the
judge had her arrested and admonished the rest of the panel that, based on the judge’s experience
as a former prosecutor, it was “difficult” to seat a jury in “these types of cases.” Id. at 766. The
judge stated, “if it grosses you out, then you can take it out on the person in punishment because
it can’t possibly gross you out more than it grossed out that child.” Id.
Unlike those in Drake, the comments in the instant case are not as extensive but go further
than “this is not going to be a big controversial case,” as addressed in Rivera. 2025 WL 3028898,
11 at *1. Vidal was entitled to a presumption of innocence unclouded by the judge’s view of the State’s
case, in particular M.N.’s testimony. The judge may have determined that such a preview was
necessary to identify biased individuals, although he preempted defense counsel’s ability to present
such a preview without judicial commentary. See Standefer v. State, 59 S.W.3d 177, 182
(Tex. Crim. App. 2001) (voir dire properly includes previews of just enough facts to identify bias);
Spielbauer v. State, 622 S.W.3d 314, 319 (Tex. Crim. App. 2021). As Vidal notes, the judge’s
comments may have set a negative “tone” at the beginning of trial. However, the record does not
suggest the comments had a lasting impact. The State introduced evidence of sexual abuse over
the course of a 7-day trial. Vidal does not dispute the sufficiency of that evidence on appeal. See
World Car Nissan v. Abe’s Paint & Body, Inc., No. 04-12-00457-CV, 2013 WL 3963700, at *4
(Tex. App.—San Antonio July 31, 2013, pet. denied) (mem. op.) (“Considering the length of the
trial, the amount of evidence presented, and the thorough voir dire questioning, it is improbable
that the judge’s vague story at the beginning of voir dire influenced the jury.”). Based on our review
of the trial transcript in its entirety, we conclude that the trial court’s comments in voir dire were
harmless.
(3) No deprivation of constitutional rights
Vidal argues in the alternative that the trial court’s comments violated his right to an
impartial tribunal and destroyed the presumption of innocence. See U.S. Const. amend. V, XIV;
Tex. Const. art. I, § 10. Vidal argues that violating this right is a “structural” error that defies harm
analysis. Abdygapparova v. State, 243 S.W.3d 191, 209 (Tex. App.—San Antonio, 2007, pet ref’d)
(citing Arizona v. Fulminante, 499 U.S. 279, 309 (1991)). But the Court of Criminal Appeals has
applied the same harm analysis to unconstitutional comments as for non-constitutional errors.
Tex. R. App. P. 44.2(b); see Irsan, 708 S.W.3d 607 (concluding “the trial judge’s comment cannot
12 be said to have affected Appellant’s substantial right to a presumption of innocence, it cannot be
said to have ‘effectively destroyed’ that presumption”); see Rodriguez, 728 S.W.3d at 237)
(explaining that harm analysis is “subsumed” in error analysis for due-process claims based on
improper comments).
Accordingly, we conclude the trial court’s comments were harmless and do not constitute
reversible error. We overrule Vidal’s first issue.
III. DESIGNATION OF THE OUTCRY WITNESS
In his second issue, Vidal claims it was error for the trial court to designate M.N.’s mother
A.N. as the outcry witness without foundation testimony that she was the first person who heard a
description of the alleged offense.
A. Standard of review
Texas Code of Criminal Procedure Article 38.072(2)(a) governs the admissibility of an
“outcry” statement and creates an exception to the hearsay rule. Tear v. State, 74 S.W.3d 555, 558–
59 (Tex. App.—Dallas, 2002). “Though the terms do not appear in the statute, the [complaining
witness’s] out-of-court statement is commonly known as an ‘outcry,’ and an adult who testifies
about the outcry is commonly known as an ‘outcry witness.’” Sanchez v. State, 354 S.W.3d 476,
484–85 (Tex. Crim. App. 2011). The outcry witness must be the “first person, 18 years old or older,
to whom the child makes a statement that in some discernible manner describes the alleged
offense.” Garcia v. State, 792 S.W.2d 88, 90–91 (Tex. Crim. App. 1990) (en banc). The outcry
statement “must be more than words which give a general allusion that something in the area of
child abuse was going on.” Id. at 91.
13 B. Analysis
Vidal argues that A.N. failed to qualify as an outcry witness because she only testified that
M.N. reported “inappropriate touching.” As the State points out, A.N.’s testimony went far beyond
that description. A.N. testified “I asked her if there was intercourse, and she said ‘No’ but that there
was masturbation and oral.” The State continued: “Q. Okay. Oral to who? A. To her. . . . He inserted
his fingers . . . in my daughter.” These statements described in some discernible manner the offense.
Garcia, 792 S.W.2d at 90–91; see Tex. Penal Code Ann. 21.11, 22.021 (acts of sexual abuse of a
child include any contact of the genitals of child and the mouth or genitals of another person). We
overrule Vidal’s second issue.
IV. CLOSING ARGUMENT
In his third and fourth issues, Vidal complains of improper argument by the State. Vidal
identifies five instances in which the prosecutor went outside the permitted categories of closing
arguments. On review, however, we conclude these isolated instances do not constitute reversible
error.
A prosecutor’s statements “must fall within one of the following categories: (1) summary
of the evidence; (2) reasonable deduction from the evidence; (3) in response to argument of
opposing counsel; and (4) plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim.
App. 1990) (en banc). This Court must review the trial court’s rulings on objections to the proper
scope of closing arguments for an abuse of discretion. Milton v. State, 572 S.W.3d 234, 240
(Tex. Crim. App. 2019). A prosecutor’s improper comment during closing argument generally
requires a timely objection at trial. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)
(en banc). However, serious and continuing prosecutorial misconduct may deprive a defendant of
14 fundamental fairness and due process of law, constituting a non-forfeitable error. Bautista v. State,
363 S.W.3d 259, 263 (Tex. App.—San Antonio 2012, no pet.).
B. Analysis
Vidal points to one objected-to closing argument: the prosecutor’s statement that defense
character witnesses who testified that M.N. was untruthful and deceitful, and she failed to provide
“any explanation as to why.” Vidal did object that “under the Rules I’m not allowed to get into
specific instances of conduct where reputation or opinion is in so by law I cannot get into it.” The
judge sustained the objection. The State does not dispute that the statement was an improper
argument. Vidal argues this statement along with four unobjected-to, improper arguments
constituted prosecutorial misconduct requiring reversal. We address each of those arguments
separately as to whether they were improper in isolation before considering whether they amounted
to prosecutorial misconduct.
Vidal complains that, during the guilt/innocence phase of trial, the prosecutor suggested
that Vidal should have admitted he was guilty by stating: “[h]e hasn’t accepted responsibility with
regard to [M.N.].” “Any defendant in a criminal action shall be permitted to testify in his own
behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance
against him, nor shall the same be alluded to or commented on by counsel in the cause.” Tex. Code
Crim. Pro. Ann. art. 38.08. Here, however, the State points out that the prosecutor only made this
statement in the punishment stage, and Vidal failed to timely object during trial. We agree that
Vidal failed to preserve error. See Tex. R. App. P. 33.1(a) (requiring a party to make a timely
request, objection, or motion stating grounds that sufficiently provide notice to the trial court).
But even if we assume he preserved error, we conclude the language can be reasonably
construed as an indirect allusion and not a clear reference to Vidal’s failure to testify. The Court of
15 Criminal Appeals has instructed that “[i]n assessing whether the defendant’s Fifth Amendment
right has been violated, courts must view the State’s argument from the jury’s standpoint and
resolve any ambiguities in the language in favor of it being a permissible argument.” Randolph v.
State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011). Specifically, the test is “whether the language
used was manifestly intended or was of such a character that the jury would necessarily and
naturally take it as a comment on the defendant’s failure to testify.” Id. Here, in context, the
statement was made in reference to Vidal presenting what amounted to an alibi defense, asserting
that the evidence showed the busy household prohibited him from being able to sexually abuse
M.N. As Randolph instructs, “comments about the failure to testify are permissible if they are a
‘fair response’ to the defendant’s claims or assertions.” Id.
Vidal next complains the prosecutor stated that Vidal “like most child molesters is
controlling,” impermissibly referring to facts not in evidence. Vidal cites Lopez v. State, No. 05-
21-00989- CR, 2023 WL 2806254, at *2–3 (Tex. App.—Dallas Apr. 6, 2023, no pet.) (mem. op.,
not designated for publication) for the proposition that as a factual matter “pedophiles don’t ‘age
out.’” In response, the State characterizes this comment as an implicit reference to a previous
question by the prosecutor during voir dire asking whether sex offenders control the circumstances
of abuse and the evidence left behind and to previous testimony by a character witness that sex
offenders assault children “behind closed doors.” Neither of those prior statements provide
evidentiary support for the State’s argument that Vidal showed controlling behavior similar to most
child molesters. We agree this statement was not a proper argument.
Vidal also complains the prosecutor vouched for M.N.’s credibility and bolstered the
State’s case by stating that M.N.’s “[t]ruth has been the same over and over”; that her “truth has
never changed;” and that, after M.N. testified, defense counsel “were horrified because what she
16 said was so true.” A prosecutor may argue that witnesses’ testimony is truthful based on evidence
presented and reasonable deductions from such evidence. Hinojosa v. State, 433 S.W.3d 742, 763
(Tex. App.—San Antonio 2014, pet. ref’d). But a “prosecutor may not inject his [or her] personal
opinion of a witness’s credibility during closing argument,” Mosley v. State, 666 S.W.3d 670, 674
(Tex. Crim. App. 2023), and such argument may be reversible error “when the credibility of the
witness was critical to the trial,.” Ex Parte Aguilar, No. AP-75,526, 2007 WL 3208751, at *12
(Tex. Crim. App. Oct. 31, 2007). Whether arguments as to truthfulness express personal opinions
rather than reasonable deductions from testimony can be a close call. Compare Simons v. State,
648 S.W.2d 21, 22 (Tex. App.—Dallas 1983, no pet.) (rejecting statement that police officers “were
telling you the truth about the way [the defendant] was driving”), with Gonzalez v. State, 337
S.W.3d 473, 483 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (“When she told you that she
was violated by that man, by [appellant] in his car on September 13th, 2007, that was the truth.”).
Here, the prosecutor’s comments mentioning M.N.’s “truth” and the comment about defense
counsel being horrified because “what she said was so true” are closer to vouching for the witness.
These comments also constitute improper argument.
Vidal next complains the prosecutor struck at him over the shoulders of defense counsel by
stating that counsel “twisted what was actually said on the stand,” “wasted your time,” and
“coached” a witness for hours, and stated that a defense character witness was “unethical.”
Prosecutors may not call defense counsel’s credibility into question. Mosley v. State, 983 S.W.2d
249, 258–59 (Tex. Crim. App. 1998). A prosecutor improperly strikes at the defendant over defense
counsel’s shoulders by accusing counsel of improper conduct in an attempt to prejudice the jury
against the defendant. Phillips v. State, 130 S.W.3d 343, 355 (Tex. App.—Houston [14th Dist.]
17 2004, pet. ref’d) (op. on reh’g). Accusing defense counsel of coaching witnesses is not a
permissible arguments for a prosecutor. See Borjan, 787 S.W.2d at 55.
We conclude that the prosecutor made several comments at closing that fell outside the
four categories of permissible argument. Id. However, the record shows these comments were each
contained within other permissible arguments. The State’s closing argument consisted largely of a
summary of the testimony at trial. Id. We conclude that the isolated statements did not constitute
prosecutorial misconduct and were not harmful. Bautista, 363 S.W.3d at 263; Tex. R. App. P.
44.2(b). We overrule Vidal’s third and fourth issues.
V. EXCLUSION OF EVIDENCE
In his fifth, sixth, and seventh issues, which are briefed together, Vidal argues that the trial
court erred in excluding evidence that the complainant told other people her first sexual experience
was with her boyfriend in 2020, contradicting her testimony that she was sexually abused in 2012
to 2014. Vidal argues the trial court both abused its discretion and violated his right to present
witnesses and to confront witnesses.
The State counters by pointing out that Vidal failed to preserve error by failing to “develop
any testimony on this issue” and the trial court “told [Vidal] to call his witness and yet [Vidal] did
nothing.” In his reply, Vidal argues that the trial court “clearly understood the issue being raised,
the [S]tate responded to the defense’s request to admit this evidence, and the judge ruled against
Appellant both orally and wrote on Appellant’s memorandum that the request was denied.” While
we agree with Vidal that he did preserve his complaint for review, nonetheless, we conclude that
the trial court did not err in excluding the evidence.
18 A. Standard of review
We review a trial court’s decision to admit or exclude evidence for abuse of discretion.
Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We do not reverse the trial court’s
ruling unless that ruling falls outside the zone of reasonable disagreement. Id. In applying the abuse
of discretion standard, we may not reverse a trial court’s admissibility decision solely because we
disagree with it. See Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will not
disturb a trial court’s evidentiary ruling if it is correct on any theory of law applicable to that
ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
If the trial court has abused its discretion by admitting or excluding evidence, any error not
affecting substantial rights must be disregarded. Tex. R. App. P. 44.2(b). In determining whether
Vidal was harmed by the erroneous admission or exclusion of evidence, we consider the following:
(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
showing guilt; and (4) whether the State emphasized the complained-of error. Bagheri v. State, 119
S.W.3d 755, 762–63 (Tex. Crim. App. 2003)).
If the trial court’s erroneous exclusion of evidence rises to the level of a deprivation of the
right to present a defense and to confront and cross-examine witnesses, see U.S. Const. amend.
VI, XIV, the burden of showing harm is flipped, see Tex. R. App. P. 44.2(a) (providing that
constitutional error requires reversal of a judgment of conviction unless court determines beyond
a reasonable doubt that the error did not contribute to the conviction).
B. Error was preserved
To preserve error, the record must show (1) a timely request, objection or motion stating
grounds for a ruling with sufficient specificity to make the trial court aware of the complaint, and
19 (2) an express or implicit ruling or refusal to rule. Tex. R. App. P. 33.1. It is undisputed that the
trial court expressly denied an oral and written request by Vidal to introduce evidence that M.N.
had told her brothers and a neighbor that her first sexual experience was in 2020 with her then
boyfriend. The court denied the request both orally and in writing. The State argues only that Vidal
failed to preserve the issue because he “did nothing” after the court denied the request orally and
in writing, such as by recalling M.N. to introduce the evidence. The premise of the State’s argument
is that Appellant was required to re-argue the same issue in front of the jury to preserve error.
When a trial court rules against an appellant’s request, objection, or motion, further action
is generally not required to preserve a complaint for appellate review. Sauceda v. State, 129 S.W.3d
116, 121 (Tex. Crim. App. 2004) (en banc) (citing Tex. R. App. P. 33.1). Even if the trial judge
denies a motion outside the presence of the jury to present evidence in a certain way, the defendant
is not required to seek to introduce the same evidence another way or to re-urge the request to
demonstrate that the trial court did not change its mind. Id. In Sauceda, the Court held that error
was preserved when, after the defense indicated to the trial court that it planned to call a caseworker
to testify to specific statements in a videotaped interview, the trial court ruled, over the defense’s
objection, that the entire videotape would come in. Id. at 119. The Court held the choice not to
present the excerpts of testimony did not waive error because the trial court had already addressed
the matter and “[i]t was unlikely that the judge would have changed her ruling after this time.”
Id. at 121.
Because the trial court expressly denied Vidal’s request to introduce evidence as to M.N.’s
sexual history, he was not required to take further action to preserve error. We conclude that issues
three, four, and five were preserved. We next consider whether the trial court’s ruling was
erroneous.
20 C. Applicable law
The Texas Rules of Evidence permit the defense or prosecution to offer evidence of other
acts to establish a motive, such as for making a false allegation. Tex. Evid. R. 404(b)(2); Johnson
v. State, 490 S.W.3d 895, 910–11 (Tex. Crim. App. 2016). Rule 412 specifically addresses the
admissibility of evidence of a complaining witness’s past sexual behavior. Such evidence is
admissible if it relates to motive or bias of the complaining witness or is “constitutionally required
to be admitted,” and if “the probative value of the evidence outweighs the danger of unfair
prejudice.” Tex. Evid. R. 412. Evidence covered by Rule 12 is “constitutionally required” when it
implicates the defendant’s right to present a defense. Potier v. State, 68 S.W.3d 657, 660
(Tex. Crim. App. 2002) (en banc). The right to present a complete defense is rooted in multiple
constitutional provisions. Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (“Whether rooted
directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or
Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants
‘a meaningful opportunity to present a complete defense.’”). A trial court’s exclusion of evidence
offered by the defense is unconstitutional if it excludes evidence that “forms such a vital portion
of the case that exclusion effectively precludes the defendant from presenting a defense.” Potier,
68 S.W.3d at 659–62, 665.
D. Analysis
Vidal contends the trial court erred by excluding admissible testimony that in 2020 M.N.
told her brothers and a neighbor that she had her “first sexual experience” with a boyfriend whom
she dated from 2019–2020, after the alleged acts of sexual abuse in 2015–2017. Vidal argues the
testimony would show “M.N. provided two narratives, one that claimed Appellant sexually
21 assaulted her in 2012 through 2014 and another where she claimed her first sexual experience was
in 2020.”
Vidal has not shown how the testimony satisfied the threshold requirements for admission
of evidence of a complainant’s sexual history. A proponent of evidence must lay a proper
foundation establishing the preliminary facts necessary for admissibility. Tex. Evid. R. 104(a).
Foundation includes establishing relevance, authentication, witness competence, personal
knowledge, and satisfaction of a hearsay exception. Id. R. 401, 601, 602, 803, 901. Relevance
requires that offered evidence have any tendency to make a fact of consequence more or less
probable. Id. R. 401. Here, M.N. allegedly stated that she had her “first sexual experience” with a
boyfriend she dated after the time of the alleged sexual abuse. In context, the statement does not
appear to be inconsistent or relevant. Even if the statement were relevant, Vidal has not shown
how he could have properly introduced it into evidence.
Evidence must be authenticated or introduced through a proper witness. Id. R. 601, 602,
901. A fact witness must have personal knowledge of the matter about which they testify. Id. R.
602. Hearsay is inadmissible unless an exception applies. Id. R. 802. The record indicates that
Vidal initially sought to introduce M.N.’s out-of-court statement through live testimony from her
brother and another witness. Vidal has not identified a hearsay exception. Reyna v. State, 168
S.W.3d 173, 178 (Tex. Crim. App. 2005) (“[I]n order to have evidence admitted under a hearsay
exception, the proponent of the evidence must specify which exception he is relying upon.”). Vidal
also sought to impeach M.N. with the statement as a prior inconsistent statement, but the court
held it was not inconsistent and that she could not be recalled absent additional testimony of
inconsistency. As Vidal acknowledged, eliciting testimony from a sexual-assault complainant
about her prior sexual history would directly implicate Tex. R. Evid. 412.
22 Rule 412 is a “rape shield” law intended to shield a sexual-assault complainant from the
introduction of highly embarrassing, prejudicial, and irrelevant evidence of prior sexual behavior.
Johnson, 490 S.W.3d at 910–11. The rule prohibits admission of a sexual assault complainant’s
past sexual behavior unless it falls within five exceptions: (1) it is necessary to rebut or explain
scientific or medical evidence offered by the State; (2) it concerns past sexual behavior with the
accused and is offered by the accused upon the issue of whether the complainant consented to the
sexual behavior which is the basis of the offense charged; (3) it relates to the motive or bias of the
complainant; (4) it is admissible under rule 609; or (5) it is constitutionally required to be admitted.
Tex. R. Evid. 412(d)(2)(B). The proponent of the evidence also bears the burden to show the
probative value of the evidence outweighs the unfair prejudice of admitting it, see id., reversing
the ordinary burden, id. R. 403. “Past” sexual behavior includes sexual behavior occurring before
trial, not merely behavior occurring before an alleged sexual assault. Cuyler v. State, 841 S.W.2d
933, 936 (Tex. App.—Austin 1992, no pet.).
Vidal argues the excluded testimony fell under the exception for sexual history that is
“constitutionally required” to be admitted, Tex. R. Evid. 412(d)(2)(B). The Court of Criminal
Appeals has held sexual history is constitutionally required to be admitted where it establishes
motive to assert false allegations in sexual assault cases. Johnson, 490 S.W.3d at 910–11. The
constitutional exception to Rule 412 does not provide a basis to introduce inadmissible hearsay.
Kennedy v. State, 184 S.W.3d 309, 315 (Tex. App.—Texarkana 2005, pet. ref’d); see Burks v. State,
40 S.W.3d 698, 700 (Tex. App.—Waco 2001, no pet.) (trial court properly refused to admit
handwritten note by complainant boasting of prior sexual encounter with unidentified boy). The
parties have not cited authority regarding admissibility under Rule 412 solely to impeach a
complainant on the basis of a prior inconsistent statement. Cf. id. 412(d)(2)(B)(i)–(iv) (only listing
23 exceptions for motive, bias, rebuttal of medical evidence, and untruthfulness based on criminal
conviction).
Assuming hearsay regarding sexual history is admissible as a prior inconsistent statement,
Vidal must show he satisfied his burden under Rule 412 to establish that its probative value
outweighed the danger of unfair prejudice. Tex. Evid. R. 412(d)(2)(C). Vidal introduced numerous
character witnesses to discredit M.N.’s truthfulness and suggest that her story was not plausible.
See Lewis v. State, 693 S.W.3d 453, 470 (Tex. App.—Houston [14th Dist.] 2023, pet. ref’d)
(concluding that the probative value of complainant’s sexual history was outweighed by prejudice
where appellant presented character evidence from three witnesses that she was not truthful); cf.
Brambila v. State, No. 13-15-00082-CR, 2016 WL 7242847, at *10 (Tex. App.—Corpus Christi–
Edinburg Dec. 15, 2016, pet. ref’d) (mem. op., not designated for publication)(trial court properly
ruled that defendant could ask complainant’s cousin whether complainant lied about prior sexual
intercourse, but only for the week before alleged assault, and could not ask cousin whether
complainant feared she was pregnant by her boyfriend, where jury heard extensive testimony that
the complainant was not a truthful person). We conclude that Vidal has not shown that admission
of evidence as to M.N’s sexual history was constitutionally required.
We conclude the trial court did not abuse its discretion by refusing to allow testimony as to
M.N.’s prior sexual experience. We overrule Vidal’s third, fourth, and fifth issues.
VI. CONCLUSION
Having overruled all of Vidal’s issues, we affirm the trial court’s judgment.
GINA M. PALAFOX, Justice
24 March 24, 2026
Before Salas Mendoza, C.J., Palafox and Soto, JJ.
(Do Not Publish)