Felipe Arroyo v. the State of Texas

Opinion

Opinion issued August 11, 2026

In The

Court of Appeals

For The

First District of Texas

1) the trial court made remarks concerning the backlog of criminal cases during jury selection that were calculated to convey to the jury its opinion of the case in violation of article 38.05 of the Code of Criminal Procedure;

2) these same jury selection remarks deprived Arroyo of his constitutional right to due process and an impartial judge and violated his constitutional right to be presumed innocent until proven guilty; and

3) the trial court erred in admitting into evidence over objection extraneous offenses, as the State did not give the notice required by article 38.37 of the Code of Criminal Procedure or Rule 404(b) of the Rules of Evidence.

We affirm.

BACKGROUND

Because of the nature of Arroyo’s appellate issues, we need not go into much detail regarding the trial. In summary, his granddaughter testified that he repeatedly molested her between the ages of six and ten. The State introduced the testimony of five other female relatives, including the granddaughter’s mother, each of whom testified that Arroyo likewise molested them when they were minors. Arroyo, who was the lone defense witness, flatly denied molesting anyone. The jury sided with Arroyo’s granddaughter and found him guilty of the offense of continuous sexual abuse as alleged in the indictment. Arroyo appeals his resulting conviction.

DISCUSSION

I. The judge’s remarks during jury selection about the backlog of criminal cases did not violate article 38.05 of the Texas Code of Criminal Procedure, and they were harmless even if they could be construed as a violation.

During jury selection, the judge explained that, as a retired judge, he presided

over an emergency relief docket intended to deal with the backlog of cases:

3

And let me explain to you that you’re not in the Criminal Justice Center building, you understand that. You’re in what we call the Family Law Center, because years ago that’s the only thing that was handled in this building, the family law cases, divorces, adoptions, anything of that nature.

But since we have new judges that have been appointed all the courtrooms over there are taken. So they’ve made room in this building for what we call the ERD, emergency relief docket courts, and these courts are presided over by retired judges such as myself.

Now, none of the judges in these three courts are elected. They’re all retired. It’s good for the county because what we do in these courts is try to help out the elected judges. As I’m sure all of you are aware, the criminal justice system throughout the United States is overburdened with cases. So there’s a tremendous backlog. And we’re doing what we can here in Harris County with these three courts to help out the other courts to make an effort to reduce the backlog.

Now, I had a prospective juror ask me one day when we were doing this, he said when do you think you’re going to get caught up?

And I said, well, when people quit breaking the law I guess is when we’ll get caught up. So until then, we’re doing our best to try to reduce the backlog and at least try to keep up with the cases, new cases that are being filed.

Arroyo argues that these remarks conveyed the judge’s opinion of the case to the jury, specifically that Arroyo was guilty of the charged offense. See TEX. CODE CRIM. PROC. art. 38.05 (judge shall not “make any remark calculated to convey to the jury his opinion of the case” before jury returns its verdict).

Our court has already rejected the same argument with respect to materially indistinguishable remarks about the backlog of cases made during jury selection by the same judge. See Rodriguez v. State, 728 S.W.3d 228, 232 (Tex. App.—Houston [1st Dist.] 2025, pet. ref’d) (judge said backlog would persist until people quit

4

breaking law). There, our court held that these remarks do not violate article 38.05 because they do not convey an opinion about the case at hand. See id. at 233–34.

This case might be distinguishable on another ground. Here, Arroyo disputed whether a crime had occurred. Whereas in Rodriguez, our court’s holding was premised in part on the fact that the defendant only disputed that he was not the one who committed the charged crime. See id. One could argue that remarks about the backlog of cases and its cause—the continuous commission of crimes—take on a different resonance when a defendant disputes that a crime has taken place at all, rather than disputing he committed an undisputed crime.

But this is a distinction without a difference in this instance. On the record before us, the judge’s remarks that the backlog would persist so long as crimes continued to be committed did not convey an opinion one way or another about whether Arroyo had committed the crime charged. As phrased, the judge’s backlog remarks were about a systemic criminal justice problem, not this particular case.

With reference to this particular case, the judge told the jury panel that the grand jury’s indictment charging Arroyo was “not evidence of guilt” and had no bearing on whether he was guilty or not guilty. In addition, the judge stated that, just like the jury panel, he had not heard any evidence and did not know anything about the case at this point. Given these additional remarks made during jury selection, no

5

reasonable panel member could have understood the judge’s statements about the backlog of cases to be an expression of his opinion about this case.

In any event, in Rodriguez, our court further held that the judge’s materially indistinguishable remarks were harmless even if they could somehow be construed as violating article 38.05. See id. (no substantial and injurious effect or influence on jury’s verdict). The same is equally true on the record before us in this case.

Here, the judge emphasized during jury selection that “an individual charged with any kind of crime is presumed innocent until the State proves the case,” which it had to do “beyond a reasonable doubt”—the “highest burden of proof in our legal jurisprudence.” And this presumption was restated in the jury charge as well.

When, as here, the jury is properly instructed on the presumption of innocence, and nothing in the record shows that the empaneled jurors said they could not or did not abide by this instruction, any ostensible article 38.05 error is not reversible because it cannot be said to have adversely affected the jury’s verdict. See id.; see also Irsan v. State, 708 S.W.3d 584, 605–07 (Tex. Crim. App. 2025) (judge’s remark in jury selection that case being “solved” resulted in publicity was harmless, given that judge went on to emphasize presumption of innocence and none of jury panel who heard remark indicated that they could not follow law as to presumption).

We overrule Arroyo’s first issue.

6

II. Our court’s binding decision in Rodriguez likewise disposes of Arroyo’s complaints that the judge’s backlog remarks violated his right to due process and an impartial judge and his right to be presumed innocent.

In Rodriguez, the defendant made the same arguments Arroyo does about due process, judicial impartiality, and the presumption of innocence. See 728 S.W.3d at 234 (premising these same arguments on materially indistinguishable backlog remarks). Our court rejected these arguments on the ground that any ostensible error was harmless. See id. at 234–38. Once again, the same is equally true in this case.

As in Rodriguez, the trial judge’s backlog remarks were brief and made a single time. The judge did not tie these remarks to Arroyo’s case in particular. Later in jury selection, the judge told the jury panel that the grand jury’s indictment was not evidence of guilt, that Arroyo was presumed innocent, and that the outcome of the trial would turn on whether the jury found that the State carried its burden to prove he had committed the charged offense beyond a reasonable doubt. These principles were reiterated in the jury charge after the jury heard the evidence.

In short, this record refutes the notion that the judge’s backlog remarks harmed Arroyo or that he suffered the kind of prejudice that could justify reversal. We thus reject his due process, impartiality, and presumption of innocence claims. See id. (rejecting same claims premised on same basic remarks on same basis).

We overrule Arroyo’s second issue.

7

III. The State’s failure to give timely notice of its intent to introduce some of the extraneous-offense evidence admitted at trial did not affect Arroyo’s substantial rights; thus, we cannot reverse his conviction on this ground.

Finally, Arroyo argues that the State failed to timely notify him of its intent to call some of the witnesses who testified about extraneous offenses, and that the trial court abused its discretion in allowing these witnesses to testify due to the lack of required notice. We assume for argument’s sake that Arroyo is correct. Even so, we hold that any such error is harmless because the record does not show that Arroyo’s trial strategy would have differed in any way had he received the required notice.

Of the five female relatives who testified that Arroyo also molested them when they were minors, Arroyo complains that the State notified him of its intent to call three of them as witnesses only on the day of jury selection. These witnesses are AB, EA, and VA, each of whom testified that he touched them on several occasions in ways that constituted the offense of indecency with a child by sexual contact when they were very young children. See TEX. PENAL CODE § 21.11(a)(1), (c).

AB’s and EA’s testimony was admitted under article 38.37 of the Code of Criminal Procedure, and VA’s testimony was admitted under Rule 404(b) of the Rules of Evidence. The former provision allows in extraneous offenses “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.” TEX. CODE CRIM. PROC. art. 38.37, § 2(b). The latter provision allows this evidence

8

in “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2). Article 38.37 always requires the State to provide advance notice of its intent to introduce extraneous offenses in its case-in-chief. See TEX. CODE CRIM. PROC. art. 38.37, § 3 (requiring at least 30 days’ notice before trial). When, as here, a defendant requests it, Rule 404(b) also requires advance notice. See TEX. R. EVID. 404(b)(2) (requiring “reasonable notice before trial” when requested).

Here, it is undisputed that the State gave summaries of its interviews with AB, EA, and VA to the defense almost nine months before trial. It is also undisputed that the defense was aware of the extraneous offenses disclosed in the summaries. But the State did not expressly tell the defense that it intended to call AB, EA, and VA as witnesses to testify about these extraneous offenses in its case-in-chief.

In these circumstances, Court of Criminal Appeals precedent suggests that the provision of these interview summaries might not satisfy Rule 404(b)(2)’s notice requirement. In Hayden v. State, the Court held that the provision of interview summaries could satisfy that rule’s notice requirement if the summaries were provided soon after the defense’s request for notice or if the defense did not dispute that it understood the summaries were intended to provide such notice. 66 S.W.3d 269, 272–73 (Tex. Crim. App. 2001); see also Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995) (State’s open-file policy did not give notice required by

9

Rule 404(b)(2) because mere access to its file containing extraneous evidence does not convey State’s intent to introduce this evidence in its case-in-chief). Here, however, the State provided the interview summaries to the defense more than three years after the defense requested notice, and the defense denied that it understood the provision of these summaries as notice that AB, EA, and VA would testify. Nor does the defense’s denial ring hollow. Notably, the State provided interview summaries for two others (RR and LB) whom it did not call as trial witnesses.

Similarly, the State’s provision of the summaries arguably might not satisfy the notice requirement of article 38.37 under these circumstances. See TEX. CODE CRIM. PROC. art. 38.37, § 3 (requiring “notice of the state’s intent to introduce in the case in chief” extraneous offenses, not merely the existence of these offenses).

But we need not decide whether the State timely gave notice here. Because assuming for argument’s sake the State did not, its failure to do so was harmless.

We may not reverse a trial court for an error that is not constitutional in nature unless the error affected the appellant’s substantial rights. TEX. R. APP. P. 44.2(b). The erroneous admission of extraneous-offense evidence without notice is not constitutional in nature. See McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005) (“no constitutional error is involved when evidence of uncharged misconduct is admitted without notice,” so Rule 44.2(b) standard applies here). When, as in this case, the appellant’s complaint concerns lack of notice, “we look

10

only at the harm that may have been caused by the lack of notice and the effect the lack of notice had on the appellant’s ability to mount an adequate defense.” Id.

Arroyo asserts that the lack of notice here prevented him from preparing for trial because he “was surprised by the substance of the evidence.” But in the trial court, his counsel conceded that he had received the interview summaries and was aware of their contents almost nine months before trial. Given this concession, he cannot claim that he was surprised by the substance of these witnesses’ testimony.

Arroyo also asserts that “the lack of notice affected his ability to prepare cross-

examination or mitigating evidence.” But he does not specify additional questions that his counsel would have asked on cross-examination or identify any mitigating evidence he could have offered had he been given greater notice. Nor does Arroyo explain how greater notice would have meaningfully altered his trial strategy.

Arroyo was already aware that his trial would include testimony about extraneous offenses from two witnesses (NL and JV) who were timely disclosed. Thus, he knew trial was not going to be a simple he said, she said swearing match between him and his granddaughter. Extraneous offenses were in the mix all along.

At trial, Arroyo presented an all-or-nothing defense in which he flatly denied all wrongdoing. Defense counsel’s primary tactic on cross-examination appeared to be challenging the witnesses’ recall of the details surrounding their accusations.

11

Arroyo does not explain how his defense would have differed if he had greater notice of the additional extraneous offenses about which AB, EA, and VA testified.

On this record, nothing suggests that Arroyo’s trial strategy would have differed if the State had given him greater notice of its intent to call AB, EA, and VA as witnesses. Hence, the asserted lack of notice did not affect his substantial rights and is not a basis for reversal. See id. at 578–79 (erroneous admission of uncharged conduct was harmless as appellant had opportunity to cross-examine witness, whom defense tried to discredit by challenging her ability to remember details, and notice would not have affected defense strategy); Martines v. State, 371 S.W.3d 232, 249–50 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (similar).

We overrule Arroyo’s third issue.

CONCLUSION

We affirm the trial court’s judgment.

David Gunn

Justice

Panel consists of Chief Justice Adams and Justices Gunn and Johnson. Do not publish. TEX. R. APP. P. 47.2(b).

Footnotes

1. NO. 01-24-00828-CR ——————————— FELIPE ARROYO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 337th District Court Harris County, Texas Trial Court Case No. 1754900 MEMORANDUM OPINION A jury found Felipe Arroyo guilty of the offense of continuous sexual abuse of a child, and the trial court assessed his punishment at 50 years of imprisonment. On appeal, he argues that we must reverse his judgment of conviction because: