In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-25-00220-CR
ENRIQUE MANUEL ELIZALDE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court Potter County, Texas Trial Court No. 078753-A-CR, Honorable Dee Johnson, Presiding
June 15, 2026 MEMORANDUM OPINION Before PARKER, C.J., and DOSS and PRATT, JJ.
Appellant, Enrique Manuel Elizalde, appeals his conviction for the offense of
aggravated sexual assault of a child under six years of age 1 and resulting sentence of 25
years’ incarceration. We affirm the judgment of the trial court.
1 See TEX. PENAL CODE § 22.021(a)(1)(B)(i), (a)(2)(B), (f)(1). This statute was amended in 2025 to make the minimum 25-year sentence applicable when the victim of the offense is younger than 10 years of age at the time of the offense rather than younger than six years of age. See Act of June 20, 2025, 89th Leg., ch. 557, § 21, 2025 Tex. Gen. Laws 1313, 1324 (effective Sept. 1, 2025). However, Appellant was convicted of an offense committed before the effective date of this amendment, so, as indicted, the State had to prove that Appellant’s victim was younger than six. BACKGROUND
In late 2019, the Texas Department of Family and Protective Services removed
three-year-old G.M. from her biological parents’ custody and made a kinship placement
with Appellant. In early 2020, G.M. was removed from Appellant’s custody when
allegations of physical abuse were raised. These allegations were confirmed and
Appellant’s wife, Magdalena Lucero, was identified as the perpetrator of the physical
abuse. 2 At that time, a sexual abuse investigation was also initiated. As part of that
investigation, G.M. tested positive for genital herpes. The sexual abuse investigation
revealed that G.M. had not been born with any sexually transmitted diseases. Lucero
told investigators that she had herpes, which she believed she acquired from Appellant
as a result of his being unfaithful during the marriage. Appellant was arrested for and
subsequently charged with aggravated sexual assault.
During the subsequent trial, the State admitted a recorded interview between
Appellant and law enforcement in which Appellant admitted that he had placed his fingers
inside G.M.’s vagina. However, Appellant claimed that he had done so mistakenly
believing that G.M. had been Lucero. To refute Appellant’s claim of mistake or accident,
the State offered the testimony of M.L., Lucero’s sister. M.L. testified that, months before
G.M. moved into the home and when M.L. was twelve years old, Appellant sexually
assaulted her. Ultimately, the jury returned verdicts finding Appellant guilty as charged in
2 Lucero subsequently pleaded guilty to a criminal charge of injury to a child relating to this physical
abuse of G.M.
2 the indictment and recommending a 25-year sentence of incarceration. The trial court
entered judgment on the jury’s verdicts. Appellant timely appealed.
By his appeal, Appellant presents two issues. Appellant contends, through his first
issue, that the trial court abused its discretion when it overruled his Texas Rule of
Evidence 403 objection to extraneous offense evidence that he sexually assaulted M.L.
By his second issue, Appellant contends that the evidence is insufficient to support his
conviction.
ISSUE TWO: SUFFICIENCY OF THE EVIDENCE
Because Appellant’s second issue would offer the greatest relief if sustained, we
will address that issue first. Roberson v. State, 810 S.W.2d 224, 225 (Tex. Crim. App.
1991) (per curiam) (en banc); Espinal v. State, 729 S.W.3d 921, 924 (Tex. App.—Amarillo
2026, no pet.). Here, specifically, Appellant challenges the sufficiency of the evidence
regarding whether he acted intentionally or knowingly.
In reviewing the sufficiency of the evidence, we consider all evidence in the light
most favorable to the verdict and determine whether any rational trier of fact could have
found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Dunham v. State, 666 S.W.3d 477,
482 (Tex. Crim. App. 2023). The reviewing court considers all of the evidence admitted
at trial, including evidence that may have been improperly admitted. Winfrey v. State,
393 S.W.3d 763, 767 (Tex. Crim. App. 2013).
As charged, the State was required to prove beyond a reasonable doubt that
Appellant, on or about November 25, 2019, intentionally or knowingly penetrated G.M.’s 3 sexual organ when she was under six years of age with his finger. See TEX. PENAL CODE
§ 22.021(a)(1)(B)(i), (a)(2)(B), (f)(1). A person acts intentionally with respect to the nature
or result of his conduct when it is his conscious objective or desire to engage in the
conduct or cause the result. Id. § 6.03(a). A person acts knowingly with respect to the
nature or circumstances of his conduct when he is aware of the nature of his conduct or
that the circumstances exist. Id. § 6.03(b). A person acts knowingly with respect to a
result of his conduct when he is aware that his conduct is reasonably certain to cause the
result. Id.
In the present case, the jury heard evidence that G.M. had acquired genital herpes
sometime after her birth, and it is likely that Appellant was the source. In a recorded
interview with the police, Appellant admitted that he penetrated G.M.’s genitals with his
finger. To counter Appellant’s contention that he penetrated G.M.’s sexual organ by
mistake, the State admitted evidence that Appellant had, within months of his assault of
G.M., sexually assaulted M.L., another young member of the household. Appellant does
not contest commission of the offense or G.M.’s age at the time of the offense; rather, he
contends that the evidence that he acted intentionally or knowingly is insufficient to
support the verdict. The jury could have found Appellant’s explanation, contained in his
interview, that he thought that three-year-old G.M. was his wife to be incredible. See Lee
v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 206 S.W.3d
620, 624 (Tex. Crim. App. 2006) (jury, as sole judge of weight given to evidence, can
believe or disbelieve all or any part of evidence).
Having viewed the evidence in the appropriate light, we conclude that a rational
jury could find the essential elements of the charged offense beyond a reasonable doubt. 4 Thus, we conclude that the evidence is sufficient to support Appellant’s conviction, and
we overrule his second issue.
ISSUE ONE: EXTRANEOUS OFFENSE EVIDENCE REGARDING M.L.
By his first issue, Appellant contends that the trial court abused its discretion when
it overruled his Rule 403 objection to extraneous offense evidence that he sexually
assaulted M.L. Appellant contends that the present offense and the evidence of his
assault of M.L. are too dissimilar to overcome his Rule 403 objection.
Whether to admit particular evidence is a matter which lies within the trial court’s
considered discretion. Montgomery v. State, 415 S.W.3d 580, 583 (Tex. App.—Amarillo
2013, pet. ref’d) (citing Page v.
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-25-00220-CR
ENRIQUE MANUEL ELIZALDE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court Potter County, Texas Trial Court No. 078753-A-CR, Honorable Dee Johnson, Presiding
June 15, 2026 MEMORANDUM OPINION Before PARKER, C.J., and DOSS and PRATT, JJ.
Appellant, Enrique Manuel Elizalde, appeals his conviction for the offense of
aggravated sexual assault of a child under six years of age 1 and resulting sentence of 25
years’ incarceration. We affirm the judgment of the trial court.
1 See TEX. PENAL CODE § 22.021(a)(1)(B)(i), (a)(2)(B), (f)(1). This statute was amended in 2025 to make the minimum 25-year sentence applicable when the victim of the offense is younger than 10 years of age at the time of the offense rather than younger than six years of age. See Act of June 20, 2025, 89th Leg., ch. 557, § 21, 2025 Tex. Gen. Laws 1313, 1324 (effective Sept. 1, 2025). However, Appellant was convicted of an offense committed before the effective date of this amendment, so, as indicted, the State had to prove that Appellant’s victim was younger than six. BACKGROUND
In late 2019, the Texas Department of Family and Protective Services removed
three-year-old G.M. from her biological parents’ custody and made a kinship placement
with Appellant. In early 2020, G.M. was removed from Appellant’s custody when
allegations of physical abuse were raised. These allegations were confirmed and
Appellant’s wife, Magdalena Lucero, was identified as the perpetrator of the physical
abuse. 2 At that time, a sexual abuse investigation was also initiated. As part of that
investigation, G.M. tested positive for genital herpes. The sexual abuse investigation
revealed that G.M. had not been born with any sexually transmitted diseases. Lucero
told investigators that she had herpes, which she believed she acquired from Appellant
as a result of his being unfaithful during the marriage. Appellant was arrested for and
subsequently charged with aggravated sexual assault.
During the subsequent trial, the State admitted a recorded interview between
Appellant and law enforcement in which Appellant admitted that he had placed his fingers
inside G.M.’s vagina. However, Appellant claimed that he had done so mistakenly
believing that G.M. had been Lucero. To refute Appellant’s claim of mistake or accident,
the State offered the testimony of M.L., Lucero’s sister. M.L. testified that, months before
G.M. moved into the home and when M.L. was twelve years old, Appellant sexually
assaulted her. Ultimately, the jury returned verdicts finding Appellant guilty as charged in
2 Lucero subsequently pleaded guilty to a criminal charge of injury to a child relating to this physical
abuse of G.M.
2 the indictment and recommending a 25-year sentence of incarceration. The trial court
entered judgment on the jury’s verdicts. Appellant timely appealed.
By his appeal, Appellant presents two issues. Appellant contends, through his first
issue, that the trial court abused its discretion when it overruled his Texas Rule of
Evidence 403 objection to extraneous offense evidence that he sexually assaulted M.L.
By his second issue, Appellant contends that the evidence is insufficient to support his
conviction.
ISSUE TWO: SUFFICIENCY OF THE EVIDENCE
Because Appellant’s second issue would offer the greatest relief if sustained, we
will address that issue first. Roberson v. State, 810 S.W.2d 224, 225 (Tex. Crim. App.
1991) (per curiam) (en banc); Espinal v. State, 729 S.W.3d 921, 924 (Tex. App.—Amarillo
2026, no pet.). Here, specifically, Appellant challenges the sufficiency of the evidence
regarding whether he acted intentionally or knowingly.
In reviewing the sufficiency of the evidence, we consider all evidence in the light
most favorable to the verdict and determine whether any rational trier of fact could have
found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Dunham v. State, 666 S.W.3d 477,
482 (Tex. Crim. App. 2023). The reviewing court considers all of the evidence admitted
at trial, including evidence that may have been improperly admitted. Winfrey v. State,
393 S.W.3d 763, 767 (Tex. Crim. App. 2013).
As charged, the State was required to prove beyond a reasonable doubt that
Appellant, on or about November 25, 2019, intentionally or knowingly penetrated G.M.’s 3 sexual organ when she was under six years of age with his finger. See TEX. PENAL CODE
§ 22.021(a)(1)(B)(i), (a)(2)(B), (f)(1). A person acts intentionally with respect to the nature
or result of his conduct when it is his conscious objective or desire to engage in the
conduct or cause the result. Id. § 6.03(a). A person acts knowingly with respect to the
nature or circumstances of his conduct when he is aware of the nature of his conduct or
that the circumstances exist. Id. § 6.03(b). A person acts knowingly with respect to a
result of his conduct when he is aware that his conduct is reasonably certain to cause the
result. Id.
In the present case, the jury heard evidence that G.M. had acquired genital herpes
sometime after her birth, and it is likely that Appellant was the source. In a recorded
interview with the police, Appellant admitted that he penetrated G.M.’s genitals with his
finger. To counter Appellant’s contention that he penetrated G.M.’s sexual organ by
mistake, the State admitted evidence that Appellant had, within months of his assault of
G.M., sexually assaulted M.L., another young member of the household. Appellant does
not contest commission of the offense or G.M.’s age at the time of the offense; rather, he
contends that the evidence that he acted intentionally or knowingly is insufficient to
support the verdict. The jury could have found Appellant’s explanation, contained in his
interview, that he thought that three-year-old G.M. was his wife to be incredible. See Lee
v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 206 S.W.3d
620, 624 (Tex. Crim. App. 2006) (jury, as sole judge of weight given to evidence, can
believe or disbelieve all or any part of evidence).
Having viewed the evidence in the appropriate light, we conclude that a rational
jury could find the essential elements of the charged offense beyond a reasonable doubt. 4 Thus, we conclude that the evidence is sufficient to support Appellant’s conviction, and
we overrule his second issue.
ISSUE ONE: EXTRANEOUS OFFENSE EVIDENCE REGARDING M.L.
By his first issue, Appellant contends that the trial court abused its discretion when
it overruled his Rule 403 objection to extraneous offense evidence that he sexually
assaulted M.L. Appellant contends that the present offense and the evidence of his
assault of M.L. are too dissimilar to overcome his Rule 403 objection.
Whether to admit particular evidence is a matter which lies within the trial court’s
considered discretion. Montgomery v. State, 415 S.W.3d 580, 583 (Tex. App.—Amarillo
2013, pet. ref’d) (citing Page v. State, 213 S.W.3d 332, 337 (Tex. Crim. App. 2006)). We
will not interfere with the trial court’s exercise of that discretion unless we find that the
ruling so deviates from applicable guidelines and principles as to place it outside the zone
of reasonable disagreement. Id.
Rule 403 allows for the exclusion of otherwise relevant evidence “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. Rule 403 favors the admission of relevant evidence and carries a presumption
that relevant evidence is more probative than prejudicial. Wells v. State, 558 S.W.3d 661,
669 (Tex. App.—Fort Worth 2017, pet. ref’d) (citing Shuffield v. State, 189 S.W.3d 782,
787 (Tex. Crim. App. 2006)). Appellant bears the burden to overcome this presumption.
Id. When an objection under Rule 403 is made, the trial court applies the following
balancing criteria: (1) the inherent probative force of the evidence along with (2) the
5 State’s need for the evidence against (3) any tendency of the evidence to suggest a
decision on an improper basis, (4) any tendency of the evidence to confuse or distract the
jury from the main issues, (5) any tendency of the evidence 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 merely repeat evidence already admitted. Id.
We conclude that Appellant failed to overcome this presumption. Appellant argued
that he was not guilty of the charged offense because he inserted his finger into G.M.’s
sexual organ accidentally thinking that she was Lucero. This argument increased the
probative force of evidence of a separate sexual assault against another minor in
Appellant’s household within months of the charged offense. 3 See id. at 670 (evidence
of other sexual assaults is prejudicial but “its prejudicial nature arises from the fact that it
was especially probative of Appellant’s propensity to prey on underage members of his
household”). Appellant attempts to distinguish the assaults based on the ages of the
victims (M.L. was twelve, while G.M. was three) and the time of day (M.L. was assaulted
in the middle of the day, while G.M. was assaulted in the middle of the night). We do not
think that these dissimilar facts are sufficient to make evidence of Appellant’s assault of
M.L. substantially more unfairly prejudicial than probative. Further, presentation of
evidence of Appellant’s assault of M.L. was not repetitive and did not take an inordinate
amount of time to present. There is no indication in the record that evidence of Appellant’s
3 At the same time that Appellant objected to this evidence under Rule 403, he also objected to it
under Rule 404. The trial court overruled Appellant’s objection noting that the evidence was admissible to show intent, absence of mistake, and lack of accident. See TEX. R. EVID. 404(b)(2) (identifying purposes for which extraneous offense evidence may be admissible).
6 assault of M.L. distracted the jury from the main issues in the case, suggested a decision
on an improper basis, or was given undue weight because the jury was ill equipped to
evaluate its probative force. Consequently, we do not find the trial court’s admission of
evidence of Appellant’s assault of M.L. to have been an abuse of discretion. We overrule
Appellant’s first issue.
CONCLUSION
Having overruled Appellant’s issues, we affirm the judgment of the trial court.
Judy C. Parker Chief Justice
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