NUMBER 13-23-00081-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DAVID RODRIGUEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 36TH DISTRICT COURT OF SAN PATRICIO COUNTY, TEXAS
OPINION
Before Justices Benavides, Tijerina, and Silva Opinion by Justice Benavides
A jury convicted appellant David Rodriguez of continuous sexual abuse of a young
child, a first-degree felony, and assessed his punishment at thirty years’ imprisonment.
See TEX. PENAL CODE ANN. §§ 12.32(a), 21.02(b). Rodriguez raises two issues on appeal.
First, he claims the trial court erred by allowing forensic interviewer Penny Green to testify as an outcry witness because (a) the proper outcry witness had already testified, and
(b) Green did not actually conduct the complainant’s forensic interview. Second, he
argues the trial court erred in admitting extraneous offense evidence because (a) Article
38.37 of the Texas Code of Criminal Procedure is unconstitutional, and (b) the evidence
was otherwise inadmissible under Texas Rule of Evidence 404(b). We affirm.
I. BACKGROUND
In November of 2021, Rodriguez was indicted for continuous sexual abuse of a
child under the age of fourteen for allegedly committing two or more acts of sexual abuse
against his step-granddaughter Violet1 during a period that began on or about April 10,
2019, and ended on or about April 10, 2021. See id. § 21.02(b). The specific acts of sexual
abuse alleged in the indictment were different forms of indecency with a child by sexual
contact. See id. § 21.02(c)(2), (4).
The evidence at trial established that Violet was born on April 11, 2007, making
her between the ages of eleven and thirteen during the alleged period of sexual abuse.
Violet, who was fifteen years old at the time of trial, testified that she began living with her
paternal grandmother and Rodriguez when she was “a baby” and that the first sexual
contact occurred when she was “probably 11.” She said that Rodriguez came into her
bedroom while she was taking a nap and began touching her chest, at first over her
clothes and then under them. Rodriguez reportedly stopped when he heard Violet’s
grandmother come home. Violet said that this type of touching occurred another “[t]en or
1 We have adopted the pseudonym assigned to the complainant in the indictment. See TEX. CONST.
art. 1, § 30(a)(1) (providing that a crime victim has “the right to be treated . . . with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2 so” times over a period of “about two years.”
Violet said that the abuse included other types of touching. On occasions,
Rodriguez would touch her “private area.” Sometimes this was over her clothes, and other
times it was under her clothes, including under her underwear. The first time Rodriguez
touched her private area, Violet was sitting on the couch watching the cartoon “Teen
Titans Go!” Rodriguez sat down next to her, turned off the television, and “started off on
[her] butt and then slowly moved onto [her] private.” Violet recalled that she was “a little
bit older” than eleven at the time. She said this type of touching also occurred “[a]bout ten
or more” times.
Finally, Violet testified that Rodriguez also “made [her] touch his privates.” The first
time this occurred, Violet was sleeping between her grandparents in their bedroom when
Rodriguez “grabbed [her] hand and made [her] touch his private.” She said that he placed
her hand “under his pants” and that “[i]t felt hairy and wrinkly.” She recalled that her
grandmother was asleep at the time because “[s]he was snoring.” She said that this type
of touching occurred “[a]bout five” times. Violet said that she never told her grandmother
about the abuse because Rodriguez threatened to hurt her if she told anyone. With the
encouragement of a close friend, Violet eventually decided to tell Rhonda Edmonds.
Edmonds testified that she is employed as a “case manager” with Communities at
Schools, which has a contract with the local school district to provide onsite support
services to students at Violet’s middle school. She said that Violet and a friend came to
her office on “April 19th.” She described Violet’s demeanor as “timid,” which signaled to
Edmonds that Violet was going to tell her “something big.” She also said that Violet “was
3 crying and definitely scared.” Violet told Edmonds that “her grandpa had touched her.”
Edmonds asked her whether the contact was related to medical care, and Violet told her
“no.” Edmonds confirmed that this was the extent of their conversation, and Violet did not
provide her with “any other details.” Edmonds said she then reported the matter to Child
Protective Services (CPS) because she “knew that this was going to turn into a police
matter, and [she] did not want to interfere in that in any way, shape or form.” She added,
“I am not trained for that in any way.”
As part of the ensuing investigation, Violet was taken to the local Children’s
Advocacy Center (CAC) for a forensic interview, which was conducted by Esmeralda
Garza. As part of its normal practice, the CAC made a video recording of the interview.
Before trial commenced, the State announced that Garza was no longer with the CAC
and was unavailable to testify. The State asked the trial court to allow Green, another
forensic interviewer with the CAC, to testify in Garza’s place “as the outcry witness”
because Green “reviewed the CAC video” and previously testified as an expert in other
child sexual abuse cases. Rodriguez said he would reserve his objection “until actual
testimony.” Likewise, the trial court deferred its ruling on Green testifying as an outcry
witness. When the State called Green to testify, Rodriguez took her on voir dire, and
Green confirmed that she did not conduct Violet’s interview, had never met Violet, and
that her only familiarity with the case was reviewing the recording of the interview
conducted by Garza. The trial court found “the witness to be reliable” and allowed her to
testify as an outcry witness.
Green then testified to the allegations Violet allegedly made during her interview
4 with Garza. Violet reportedly told Garza that Rodriguez began abusing her when she was
twelve years old. On “several” occasions when Violet’s grandmother was not at home,
Rodriguez touched Violet’s bare breasts and private area. Rodriguez also forced Violet
to “touch his private parts.” Violet reportedly said that Rodriguez’s penis “felt like spaghetti
if you didn’t know what you were touching.” Green said she did not have any concerns
that Violet was coached because Violet provided sensory details about what happened.
Elana Estrada, a sexual assault nurse examiner at Driscoll Children’s Hospital,
testified that she examined Violet on April 27, 2021. The medical records from that
examination were admitted into evidence without objection. They include Violet’s
description of the abuse during the examination, which Estrada read into the record
without objection:
It started when I was 10 or 11 and kept going from there. He, my grandpa[,] threatened me that he would hurt me if I didn’t keep it a secret. It happened every day, I don’t really want to talk about it again. The last time was 2 days before I told the school counselor, 2 weeks ago. My grandma had just left. I was in the living room watching TV. He came in and turned off the TV and started putting his hand down my pants under my clothes and up my shirt under my bra. I stopped him by kicking him and I was like, NO! I ran out into the back yard.
One time, I think I was 12 or so, he forced me on the bed and tried to put his penis in me. He had his pants partly down and pulled my pants down partly, but I kicked him in the face. It never went inside anywhere, and he never did that again.
In a section of the medical records used to indicate the “[t]ime of the incident,” Estrada
quoted Violet as saying that the abuse occurred “two years ago until two weeks ago.” In
another section used to document the type of abuse, Estrada checked boxes indicating
that the abuse included digital penetration of Violet’s sexual organ.
5 Prior to trial, the State notified Rodriguez of its intention to call Violet’s father and
aunt to testify regarding their own allegations of prior sexual abuse by Rodriguez. In a
pretrial hearing, the State asked the trial court to find their testimony admissible under
Article 38.37 of the Texas Code of Criminal Procedure. Rodriguez agreed that such
testimony is generally admissible under Article 38.37:
Your Honor, I don’t object to the State’s offer of those two witnesses; however, I would reserve any kind of objection to what they actually testify to during the trial. But, you know, I understand the law, and I know that they are allowed to testify under these circumstances, especially with notice in advance.
The trial court said that it had reviewed the State’s notice, including the “brief synopsis of
what each of these witnesses would be testifying to,” and found that such “evidence more
probably than not would allow a jury to convict based on that evidence.”
Violet’s father testified without objection that Rodriguez sexually abused him when
he was eleven years old. He said that he spent the night in the same bed as Rodriguez
and his mother, and after his mother left for work the next morning, Rodriguez began
“spooning” and “touching” his “privates” over and under his clothes. He also recalled
feeling Rodriguez’s erection. Eventually, Violet’s father was able to leave the room and
lock himself in his sister’s bedroom. This was the only incident that occurred between
himself and Rodriguez.
Violet’s aunt also testified without objection that Rodriguez sexually abused her
when she was a child. She said the first incident occurred when she “was about seven or
eight years old.” She was watching television in the master bedroom when Rodriguez
entered the bedroom and “stuck his finger in [her] butt.” She said that the abuse continued
6 for “a few years” and escalated over time: “He penetrated me. He did everything to me
throughout time.” She said that on more than ten occasions, Rodriguez penetrated her
vagina with his penis and that the first such instance occurred when she “was probably
like eight or nine.”
Rodriguez testified in his own defense and denied all the allegations of sexual
abuse made against him. The jury returned a guilty verdict and accessed Rodriguez’s
punishment as described above. This appeal followed.
II. OUTCRY TESTIMONY
By his first issue, Rodriguez argues that the trial court erred by allowing Green to
testify as an outcry witness because: (1) Edmonds was the first adult Violet made an
outcry to, and (2) Green was not the person who conducted Violet’s forensic interview.
A. Standard of Review & Applicable Law
Hearsay is an out of court statement offered at trial for the truth of the matter
asserted in the statement. TEX. R. EVID. 801(d). Hearsay is generally inadmissible unless
an exception applies. Id. R. 802. Article 38.072 of the Texas Code of Criminal Procedure
provides a statutory exception that permits the State to introduce certain hearsay
statements that a child victim of sexual abuse makes to an outcry witness. TEX. CODE
CRIM. PROC. ANN. art. 38.072, § 2. An outcry witness is the first person over the age of
eighteen, other than the defendant, to whom the child spoke about the offense. Id. art.
38.072, § 2(a)(3). Among other requirements, the trial court must hold a hearing outside
the presence of the jury to determine if the hearsay statement is “reliable based on the
time, content, and circumstances of the statement.” Id. art. 38.072, § 2(b)(2). To qualify
7 for the exception, “[t]he statement must be ‘more than words which give a general allusion
that something in the area of child abuse is going on’; it must be made in some
discernable manner and is event-specific rather than person-specific.” Lopez v. State,
343 S.W.3d 137, 140 (Tex. Crim. App. 2011) (quoting Garcia v. State, 792 S.W.2d 88, 91
(Tex. Crim. App. 1990)).
Hearsay testimony from more than one outcry witness may be admissible under
Article 38.072 so long as each of the witnesses testifies to a different instance of sexual
abuse. Id. (“Hearsay testimony from more than one outcry witness may be admissible
under article 38.072 only if the witnesses testify about different events.”); Rosales v.
State, 548 S.W.3d 796, 808 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (“The
outcry witness designation is event-specific, not person-specific.”); see also Quinones v.
State, No. 13-10-00140-CR, 2011 WL 3841586, at *9 (Tex. App.—Corpus Christi–
Edinburg Aug. 25, 2011, no pet.) (mem. op., not designated for publication) (“[S]o long as
separate outcry witnesses testify about separate offenses, the testimony of each is
admissible.”). The testimony of a second outcry witness is not admissible, however, when
the witness merely provides additional details regarding the same instance of sexual
abuse. Brown v. State, 189 S.W.3d 382, 387 (Tex. App.—Texarkana 2006, pet. ref’d)
(“[B]efore more than one outcry witness may testify, it must be determined the outcry
concerned different events and was not simply a repetition of the same event told to
different individuals.”).
“A trial court has broad discretion in determining the admissibility of outcry
statements pursuant to this statute, and the trial court’s exercise of that discretion will not
8 be disturbed on appeal unless a clear abuse of discretion is established by the record.”
Marquez v. State, 165 S.W.3d 741, 746 (Tex. App.—San Antonio 2005, pet. ref’d). A trial
court abuses its discretion if it acts arbitrarily or unreasonably, without reference to any
guiding rules or principles. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019).
The erroneous admission of a hearsay statement constitutes nonconstitutional
error that must be disregarded unless the error affects the appellant’s substantial rights.
Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); see TEX. R. APP. P. 44.2(b).
An appellate court should not overturn a criminal conviction for nonconstitutional error “if
the appellate court, after examining the record as a whole, has fair assurance that the
error did not influence the jury, or influenced the jury only slightly.” Barshaw, 342 S.W.3d
at 93 (quoting Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001)). “In cases
involving the improper admission of outcry testimony, the error is harmless when the
victim testifies in court to the same or similar statements that were improperly admitted or
other evidence setting forth the same facts is admitted without objection.” Gibson v. State,
595 S.W.3d 321, 327 (Tex. App.—Austin 2020, no pet.) (collecting cases).
B. Edmonds Was Not an Outcry Witness
By his first sub-issue, Rodriguez argues that Green could not be the outcry witness
because the first adult Violet made an outcry to was Edmonds. See TEX. CODE CRIM.
PROC. ANN. art. 38.072, § 2(a)(3). We agree with the State that Edmonds was not an
outcry witness, and therefore, her testimony would not preclude a proper outcry witness
from testifying.
Visibly upset, Violet told Edmonds that “her grandpa had touched her.” Violet
9 denied that the touching was related to medical care but did not provide Edmonds with
“any other details” about the alleged abuse. In fact, Edmonds testified that she
intentionally chose not to ask any further questions because she thought it was better left
to the proper authorities. As such, Violet’s statement to Edmonds was no more than “a
general allusion that something in the area of child abuse [wa]s going on.” See Lopez,
343 S.W.3d at 140 (quoting Garcia, 792 S.W.2d at 91); see also Banda v. State, No. 13-
19-00587-CR, 2021 WL 2006325, at *7 (Tex. App.—Corpus Christi–Edinburg May 20,
2021, pet. ref’d) (mem. op., not designated for publication) (describing a “proper outcry
witness” as “the first adult to whom the child tells the details of how, when, and where the
sexual abuse occurred”). Therefore, contrary to Rodriguez’s assertion, Violet’s statement
to Edmonds was not a legitimate basis for excluding Green as an outcry witness. See
Reyes v. State, 274 S.W.3d 724, 728 (Tex. App.—San Antonio 2008, pet. ref’d)
(concluding that a social worker was not the proper outcry witness because the
complainant’s statement was merely a general acknowledgment that she had been
abused); Castelan v. State, 54 S.W.3d 469, 475–76 (Tex. App.—Corpus Christi–Edinburg
2001, no pet.) (concluding that the complainant’s grandmother was not the proper outcry
witness because the complainant did not relay specific details of the abuse but only stated
appellant “put his thing in through the back”). We overrule Rodriguez’s first sub-issue
concerning the admission of Green’s purported outcry testimony.
C. Green Was Not a Proper Outcry Witness
Alternatively, Rodriguez argues that Green was not a proper outcry witness
because Violet made the outcry to Garza—not Green. We agree.
10 “Article 38.072 of the Texas Code of Criminal Procedure, the outcry statute, is a
hearsay exception statutorily limited to live testimony of the outcry witness.” Bays v. State,
396 S.W.3d 580, 581 (Tex. Crim. App. 2013). The outcry witness is “the first adult a child
confides in regarding the abuse.” Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim.
App. 2005); see TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(3). Article 38.072 is a
“carefully limited” exception to the general hearsay rule with “stringent procedural
requirements.” See Martinez, 178 S.W.3d at 811; Bays, 396 S.W.3d at 591.
Under the plain language of the statute, Green could not be the outcry witness
because she was not “the first person, 18 years of age or older, other than [Rodriguez],
to whom [Violet] made a statement about the offense.” See TEX. CODE CRIM. PROC. ANN.
art. 38.072, § 2(a)(3). Instead, based on the State’s own representations, that person was
Garza. The State was therefore limited to introducing Violet’s outcry statement “through”
Garza’s live testimony. See id. art. 38.072, § 2(b)(1)(B); Bays, 396 S.W.3d at 581.
Moreover, there is no statutory exception that would allow the State to introduce
Violet’s outcry by an alternative means based on Garza’s unavailability. See TEX. CODE
CRIM. PROC. ANN. art. 38.072. Indeed, the Texas Court of Criminal Appeals has rejected
attempts to introduce an outcry statement by methods other than the live testimony of the
outcry witness. See Bays, 396 S.W.3d at 582 (“The child-complainant’s own videotaped
statement does not meet the requirements for being admitted under that statute.”);
Sanchez v. State, 354 S.W.3d 476, 489 (Tex. Crim. App. 2011) (“Because an Article
38.072 hearing provides a defendant with an inadequate opportunity to cross-examine an
outcry witness’s credibility, admitting testimony from an Article 38.072 hearing at a trial
11 when the witness is unavailable violates the Sixth Amendment.”). If Violet’s own recorded
statement was inadmissible under Article 38.072, then it stands to reason that Green
could not use that video as the sole basis for providing outcry testimony. See Bays, 396
S.W.3d at 582. Simply put, a person who merely watches a video recording of an outcry
statement is not an outcry witness within the meaning of the statute. See TEX. CODE CRIM.
PROC. ANN. art. 38.072, § 2(a)(3).
Lastly, the trial court’s determination during the preliminary hearing that Green was
a “reliable” witness was immaterial and misplaced. The purpose of the preliminary hearing
is to “decide the reliability of an outcry based only on the time, content, and circumstances
of the statement, leaving the determination of the outcry witness’s credibility to the fact
finder at trial.” Sanchez, 354 S.W.3d at 489 (emphasis added). For the forgoing reasons,
we conclude that the trial court abused its discretion when it permitted Green to testify as
an outcry witness.
D. The Error Was Harmless
Nevertheless, we also conclude that any error in admitting Green’s outcry
testimony was harmless because Violet and Estrada provided the same or similar
testimony without objection. See Gibson, 595 S.W.3d at 327. To be clear, Violet provided
the most detailed account of the abuse, and her testimony alone was enough to render
the error harmless. See West v. State, 121 S.W.3d 95, 105 (Tex. App.—Fort Worth 2003,
pet. ref’d) (holding that error in admitting outcry testimony did not influence jury’s verdict
or had but a slight effect because complainant provided detailed testimony relating to the
offense). In other words, Green did not testify about any key fact that was not also
12 provided through Violet’s more comprehensive testimony. As far as a specific
comparison, all three witnesses testified that Rodriguez touched Violet’s “private area” on
multiple occasions. Violet and Green both testified that Rodriguez also forced Violet to
touch his penis several times. Finally, Violet and Estrada testified that the abuse occurred
regularly over a period of two years, while Green testified that the abuse occurred
“several” times without specifying the period. On this record, we have fair assurance that
any error in admitting Green’s outcry testimony did not have a substantial and injurious
effect on the jury’s verdict. See Barshaw, 342 S.W.3d at 93. Rodriguez’s first issue is
overruled.
III. EXTRANEOUS OFFENSE EVIDENCE
By his final issue, Rodriguez argues that the trial court erred in admitting the
testimony of Violet’s father and aunt for two reasons. First, Rodriguez contends that
“Article 38.37 is unconstitutional, both facially and as applied, because it deprived
Rodriguez of the presumption of innocence in violation of the Due Process Clause of the
United States Constitution.” Alternatively, Rodriguez argues that the evidence was
inadmissible under Texas Rule of Evidence 404(b) “because the prejudicial effect of the
two extraneous offenses substantially outweighed any probative value and led to
confusion.”
A. Applicable Law
Notwithstanding Rule 404(b), which generally limits the use of extraneous offense
evidence, Article 38.37 permits the admission of evidence of prior sexual offenses for
“any bearing the evidence has on relevant matters, including the character of the
13 defendant and acts performed in conformity with the character of the defendant.”
Compare TEX. R. EVID. 404(b), with TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b). Thus,
extraneous offense evidence admitted under Article 38.37 “is, by definition, propensity
character evidence” that the Legislature has deemed “admissible notwithstanding those
characteristics.” Harris v. State, 475 S.W.3d 395, 402 (Tex. App.—Houston [14th Dist.]
2015, pet. ref’d). Before admitting such evidence, the trial court “must” conduct a
preliminary hearing outside the presence of the jury to “determine that the evidence likely
to be admitted at trial will be adequate to support a finding by the jury that the defendant
committed the separate offense beyond a reasonable doubt.” TEX. CODE CRIM. PROC.
ANN. art. 38.37, § 2-a.
Yet, a trial court may exclude evidence that is admissible under Article 38.37 if its
probative value is “substantially outweighed” by a danger of unfair prejudice, confusing
the issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence. TEX. R. EVID. 403; see TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b) (excepting
evidence admitted under Article 38.37 from the application of Rules 404 and 405 but not
Rule 403). However, to trigger a balancing test under Rule 403, the defendant must make
a timely objection or request. Belcher v. State, 474 S.W.3d 840, 847 (Tex. App.—Tyler
2015, no pet.) (“When evidence of a defendant’s extraneous acts is relevant under Article
38.37, Section 2(b), the trial court is still required to conduct a Rule 403 balancing test
upon proper objection or request.”); see also Killinger v. State, No. 13-17-00016-CR, 2020
WL 728305, at *4 (Tex. App.—Corpus Christi–Edinburg Feb. 13, 2020, pet. ref’d) (mem.
op., not designated for publication) (discussing the procedures for admitting evidence
14 under Article 38.37 and noting that, “[u]pon proper objection, the trial court must also
conduct a balancing test under Rule 403”). If not, the issue is forfeited and may not be
raised for the first time on appeal. Lumsden v. State, 564 S.W.3d 858, 898–99 (Tex.
App.—Fort Worth 2018, pet. ref’d) (declining to address an issue concerning Rule 403
because appellant failed to preserve it in the trial court); see also Flores v. State, No. 13-
12-00362-CR, 2013 WL 3326982, at *5 (Tex. App.—Corpus Christi–Edinburg June 27,
2013, no pet.) (mem. op., not designated for publication) (“Because appellant did not
make a proper rule 403 objection to this testimony at trial, he has waived this argument
on appeal.”); Hernandez v. State, No. 13-97-675-CR, 1998 WL 34202539, at *3 (Tex.
App.—Corpus Christi–Edinburg Nov. 12, 1998, no pet.) (not designated for publication)
(“We hold that appellant failed to object based on rule 403, and has therefore waived this
argument.”).
B. Rodriguez Failed to Preserve the Issue
As a preliminary matter, the State argues that Rodriguez has not preserved either
of his complaints about the admissibility of the extraneous offense evidence. Generally,
a constitutional challenge to a statute, whether facial or as applied, cannot be raised for
the first time on appeal. See Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App.
2009) (holding that “a defendant may not raise for the first time on appeal a facial
challenge to the constitutionality of a statute”); Curry v. State, 910 S.W.2d 490, 496 (Tex.
Crim. App. 1995) (holding appellant waived his as-applied challenge to a statute’s
vagueness because he did not specifically object to it as such at trial). The only limited
exception is when the statute in question “has already been held void.” Smith v. State,
15 463 S.W.3d 890, 896 (Tex. Crim. App. 2015). Rodriguez does not direct us to any
authority holding Article 38.37 unconstitutional, and we find none. To the contrary, each
court that has considered various constitutional challenges to Article 38.37, including our
own, has found it constitutional. See, e.g., Buxton v. State, 526 S.W.3d 666, 687 (Tex.
App.—Houston [1st Dist.] 2017, pet. ref’d) (holding that Article 38.37 does not violate a
defendant’s due process rights); Bezerra v. State, 485 S.W.3d 133, 139–40 (Tex. App.—
Amarillo 2016, pet. ref’d) (same); Robisheaux v. State, 483 S.W.3d 205, 213 (Tex. App.—
Austin 2016, pet. ref’d) (same); Harris, 475 S.W.3d at 401 (same); Martin v. State, 176
S.W.3d 887, 902 (Tex. App.—Fort Worth 2005, no pet.) (same); Brantley v. State, 48
S.W.3d 318, 329–30 (Tex. App.—Waco 2001, pet. ref’d) (same); Jenkins v. State, 993
S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref’d) (same); see also Arriaga v. State,
No. 13-18-00583-CR, 2019 WL 3331637, at *3 (Tex. App.—Corpus Christi–Edinburg July
25, 2019, pet. ref’d) (mem. op., not designated for publication) (holding that Article 38.37
does not violate the separation of powers clause of the Texas Constitution); Chaisson v.
State, No. 13-16-00548-CR, 2018 WL 1870592, at *5 (Tex. App.—Corpus Christi–
Edinburg Apr. 19, 2018, pet. ref’d) (mem. op., not designated for publication) (determining
that Article 38.37 did not violate appellant’s constitutional right to due process). Thus,
Rodriguez may only raise his constitutional challenges on appeal if he preserved those
complaints in the trial court. See Karenev, 281 S.W.3d at 434; Curry, 910 S.W.2d at 496.
We have reviewed the record, and Rodriguez did not raise a constitutional
objection to Article 38.37 when the State offered the testimony of either witness. Likewise,
he did not object or request a balancing inquiry under Rule 403, and the trial court was
16 under no obligation to conduct one sua sponte. See Belcher, 474 S.W.3d at 847; see also
Killinger, 2020 WL 728305, at *4. In fact, during the preliminary hearing, Rodriguez
conceded that Violet’s father and aunt “are allowed to testify under these circumstances,
especially with notice in advance.” Consequently, he has waived any challenge to the
admissibility of their testimony. See Karenev, 281 S.W.3d at 434; Curry, 910 S.W.2d at
496; Lumsden, 564 S.W.3d at 898–99; see also Flores, 2013 WL 3326982, at *5;
Hernandez, 1998 WL 34202539, at *3. Rodriguez’s second issue is overruled.
IV. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES Justice
Publish. TEX. R. APP. P. 47.2(b).
Delivered and filed on the 4th day of April, 2024.