Court of Appeals Tenth Appellate District of Texas
10-24-00217-CR
Ruben Arredondo, Appellant
v.
The State of Texas, Appellee
On appeal from the 19th District Court of McLennan County, Texas Judge Thomas C. West, presiding Trial Court Cause No. 2018-662-C1
JUSTICE HARRIS delivered the opinion of the Court.
MEMORANDUM OPINION
A jury convicted Ruben Arredondo of four counts of sexual assault of a
child, one count of indecency with a child, and two counts of prohibited sexual
conduct. He was sentenced to 20 years in prison for each count of sexual
assault, 20 years in prison for the one count of indecency, and 20 years in prison
for each count of prohibited sexual conduct. The sentence in the last count was ordered to run “consecutively to and shall begin only when” the judgments and
sentences on the first six counts “cease[] to operate.”
Arrendondo raises five issues on appeal—the trial court erred in failing
to grant a mistrial, the trial court abused its discretion in admitting
Arredondo’s prior juvenile adjudication into evidence, and the evidence was
insufficient to support each conviction. We affirm the trial court’s judgments.
BACKGROUND
J.D. lived with his mother and, starting at about the age of seven, had
visitation with Arredondo, his father. J.D. had a half-sister with whom he
shared visitation weekends with Arredondo. When Arredondo discovered that
J.D. was inappropriately touching his half-sister, Arredondo did not report the
incident to the authorities. Instead, he offered J.D a spanking, anal sex, or
oral sex as punishment. J.D. chose oral sex because he thought it would be
quick and less painful. Arredondo had J.D. perform oral sex on him and did so
every time he discovered J.D. had touched his half-sister. Eventually, J.D. and
his half-sister’s visitations were moved to different weekends, but the oral sex
between J.D. and Arredondo continued. Eventually, J.D. requested oral sex
and then also requested anal sex. Arredondo complied. The sexual encounters
between J.D. and Arredondo began when J.D. was around 13 years old and
ended when J.D. was 17 years old.
Arredondo v. State Page 2 When J.D.’s mother and step-father discovered a nude photo of J.D. on
the family tablet, they confronted J.D. who told them what had been
happening. J.D. also volunteered to go to the police to report what Arredondo
had been doing to him and what he had been doing to his half-sister.
MISTRIAL
In his first issue, Arredondo complains the trial court erred in denying
his motion for mistrial requested during voir dire because, according to
Arredondo, the State specifically implied to the jury that Arredondo had
previously been convicted of sexual assault of a child.
The State began its questioning of the jury panel by asking how many
panel members knew a victim of sexual abuse. Almost everyone raised their
juror card. The group was reduced by more specific scenarios, such as was the
victim a relative or a child, was law enforcement involved, and how long before
the victim made an outcry, until only one panel-member card was raised. The
State then asked another broad group question:
Now, again, this is Mr. Arredondo. Those of you, which is pretty much the whole room, those of you who raised your card, I want to know: Did it involve Mr. Arredondo? Raise your card if the abuse that you raised your hand on—
Arredondo objected and when in chambers, immediately requested a
mistrial because he claimed the State had:
Arredondo v. State Page 3 …basically told this entire jury panel that my client has previously been involved in an act of sexual assault of a child. That entire panel needs to go. This case needs to be thrown out. And I'm going to ask that it be dismissed for intentional error.
The trial court denied Arredondo’s request.
The State contends Arredondo’s issue is not preserved because trial
counsel failed to make a specific objection or request an instruction to
disregard. We agree with the State’s second contention.
Most appellate complaints must be preserved by a timely request for
relief at the trial court level. Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim.
App. 2013). The "traditional and preferred procedure" for seeking relief at trial
for a complaint that must be preserved is "(1) to object when it is possible, (2) to
request an instruction to disregard if the prejudicial event has occurred, and
(3) to move for a mistrial if a party thinks an instruction to disregard was not
sufficient." Id. at 98-99 (quoting Young v. State, 137 S.W.3d 65, 69 (Tex. Crim.
App. 2004)). A party may skip the request for an instruction to disregard, but
the party will be entitled to a mistrial only if such an instruction would not
have cured the harm flowing from the error. See id. at 99. See also Lee v. State,
549 S.W.3d 138, 145 (Tex. Crim. App. 2018).
Instructions to the jury are generally considered sufficient to cure
improprieties that occur during trial. Gamboa v. State, 296 S.W.3d 574, 580
(Tex. Crim. App. 2009). And we generally presume that a jury will follow the
Arredondo v. State Page 4 judge's instructions. Id. Thus, if a curative instruction would have sufficed, it
cannot be said that the trial court abused its discretion to deny a mistrial
request. See Lee, 549 S.W.3d at 145; Ocon v. State, 284 S.W.3d 880, 885 (Tex.
Crim. App. 2009).
Immediately after Arredondo objected and before the mistrial was
requested in chambers, the trial court intervened and directed the jury to an
example of bias toward Arredondo, explaining:
Anything that you have incurred in your past, for all of those who raised your card, if there's anybody that is going to take those feelings and then direct them in an attack form [sic] against Mr. Arredondo, raise your card.
Okay. Number 20.
That is the example of bias. She's, like, I'm taking my personal experience and I'm going to find him guilty just because. I'm going to find him not guilty just because.
I think that answers the question….
After the discussion of a mistrial in chambers, nothing more was
mentioned about whether Arredondo was “involved” in any of the sexual abuse
cases. The State continued with its voir dire examination based on the trial
court’s explanation, confirming with panel member 20 that knowing a sexual
abuse victim would affect the panel member’s ability to be fair and impartial
in the case. After noting two more panel members who felt the same way, the
State “flipped” the questioning to those members who knew someone accused
Arredondo v. State Page 5 of a sex crime and whether that would affect the members’ ability to be fair
and impartial. The State then began a discussion about the rights of a
defendant.
Based on the foregoing, we conclude that an instruction to disregard
would have cured harm, if any, caused by the question proposed by the State
in voir dire. This is especially true when the trial court, as soon as the objection
was made, directed the jury’s attention to an example of a bias against
Arredondo. 1 Accordingly, because an instruction to disregard would have been
sufficient to cure harm, if any, the trial court cannot be said to have abused its
discretion in denying Arredondo’s motion for mistrial. Arredondo’s first issue
is overruled.
PRIOR JUVENILE ADJUDICATION
Arredondo next contends the trial court abused its discretion in
admitting during the guilt/innocence phase of the trial Arredondo's 1996
juvenile adjudication for engaging in the delinquent conduct of aggravated
sexual assault of a child because, he contends, the probative value of the
adjudication outweighed the danger of unfair prejudice under Texas Rule of
1 Arredondo contends he was harmed by the State’s question because after voir dire, two panel members were overheard saying that if it were up to them, they would hang Arredondo. However, nothing in the record indicated that the comment was made because of a potential prior sexual assault conviction. Moreover, one of the panel members involved in the overheard conversation told the trial court that the other member made the hanging comment and was not serious about it—he was “talking nonsense.”
Arredondo v. State Page 6 Evidence 403.
We review a trial court's decision to admit or exclude extraneous offense
evidence under Rule 403 for an abuse of discretion. Perkins v. State, 664
S.W.3d 209, 217 (Tex. Crim. App. 2022). The trial court does not abuse its
discretion unless its determination lies outside the zone of reasonable
disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).
We uphold a trial court's ruling if it is reasonably supported by the record and
is correct under any theory of law applicable to the case. Carrasco v. State, 154
S.W.3d 127, 129 (Tex. Crim. App. 2005); Holland v. State, 702 S.W.3d 836, 839
(Tex. App.—Waco 2024, pet. ref'd).
To determine whether evidence is admissible under Rule 403, we use the
Montgomery factors: (1) the strength of the evidence's probative value; (2) the
potential for the evidence to "impress the jury in some irrational but
nevertheless indelible way;" (3) the amount of time required at trial to develop
the evidence; and (4) the proponent's need for the evidence. Hart v. State, 688
S.W.3d 883, 891 (Tex. Crim. App. 2024); Montgomery v. State, 810 S.W.2d 372,
389-90 (Tex. Crim. App. 1990) (op. on reh'g). All testimony and physical
evidence are likely to be prejudicial to one party or the other. Davis v. State,
329 S.W.3d 798, 806 (Tex. Crim. App. 2010). It is only when there exists a
clear disparity between the degree of prejudice of the evidence offered and its
Arredondo v. State Page 7 probative value that Rule 403 is applicable. Id.
Probative Value
Article 38.37, Section 2(b) provides: "evidence that the defendant has
committed a separate offense described by Subsection (a)(1)…may be admitted
in the trial of an alleged offense 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). Arredondo argues the probative value of his prior juvenile
adjudication is weak because it was “too remote and dissimilar to the charged
offense.” We disagree with Arredondo.
Evidence of an extraneous sexual offense against a child admitted under
article 38.37, section 2(b) is probative of the defendant's character or
propensity to commit sexual assaults on children. Guedea v. State, 683 S.W.3d
549, 553 (Tex. App.—Waco 2023, no pet.); Holland v. State, 702 S.W.3d 836,
842 (Tex. App.—Waco 2024, pet. ref'd). The remoteness of such an offense
alone does not fully undermine its probative value. See Guedea, 683 S.W.3d at
553; Deggs v. State, 646 S.W.3d 916, 925-26 (Tex. App.—Waco 2022, pet. ref’d).
Further, similarities between the extraneous offense and charged offense may
offset any loss of probative value resulting from the extraneous offense's
remoteness. Robisheaux v. State, 483 S.W.3d 205, 220 (Tex. App.—Austin
Arredondo v. State Page 8 2016, pet. ref'd).
The adjudicated offense occurred 28 years prior to the instant trial. The
adjudication documents admitted into evidence showed that Arredondo was
adjudicated delinquent in 1996 when he was 14 years old for the offense of
aggravated sexual assault of a child. He pled true and was found to have
caused the “penetration of the anus of [A. A.], a child younger than 14 years of
age…by inserting his penis into the victim’s anus….” Testimony established
that A.A., who was seven years old at the time of the offense, was Arredondo’s
younger brother. In the case at hand, J.D. is Arredondo’s son. He was about
13 years old when Arredondo began sexually abusing him. The abuse began
with oral sex and progressed through the years to anal penetration.
While the charged offenses were not exactly the same as the adjudicated
offense, all of the charged offenses and the adjudicated offense were sexual
offenses by Arredondo against a younger, male relative. Further, both the
adjudicated offense and at least three of the charged offenses involved
Arredondo contacting or penetrating the anus of a younger, male relative.
Accordingly, we find these similarities to be more significant than the
differences and, as such, offset any potential loss of probative value resulting
from the adjudication's remoteness. This factor weighs in favor of admission.
Arredondo v. State Page 9 Impression on the Jury
Arredondo argues the adjudication improperly impressed the jury
because the offense was “significantly different” from the charges tried and
allowed the jury to overly focus on his past. We have already determined the
similarities of the offenses to be more significant than the differences. Further,
any potential improper focus by the jury was counterbalanced to some degree
by the trial court’s limiting instructions given during the trial and in the
charge. See Webb v. State, 575 S.W.3d 905, 911 (Tex. App.—Waco 2019, pet.
ref'd). This factor also weighs in favor of admission.
Time
Although Arredondo takes issue with the State’s later use of the
adjudication in questioning other witnesses, the record reveals the amount of
time required to introduce the adjudication into evidence was minimal. This
factor weighs in favor of admission.
Need
Lastly, Arredondo contends the adjudication itself was not needed
because Arredondo’s mother testified about the offense. Arredondo’s mother
sponsored the introduction of the adjudication. When testifying about the
offense alleged and adjudicated, his mother would not agree that Arredondo
inserted his penis in his brother’s anus; she only agreed that Arredondo pled
Arredondo v. State Page 10 true to that allegation. Without the introduction of the adjudication itself, his
mother might have been a more difficult witness in confirming the allegations
to which Arredondo pled true and of which he was adjudicated.
Further, Arredondo’s defensive theory was that J.D. had the reputation
of being untruthful. The introduction of that theory began with voir dire when
the panel was questioned about children or young adults not being truthful
and continued through closing argument. Arredondo and his wife both
testified that J.D. was known for being untruthful. Challenges to the victim’s
credibility increases the State's need for the extraneous-offense evidence.
Holland v. State, 702 S.W.3d 836, 843 (Tex. App.—Waco 2024, pet. ref'd).
Moreover, the State had no eyewitness testimony other than J.D. and no DNA
evidence to link Arredondo to the charged offenses.
Accordingly, for these reasons, the State needed the prior adjudication.
This factor weighs in favor of admission.
Conclusion
Based on our review of the record and after weighing the Montgomery
factors, we conclude that while the prior adjudication may have been
prejudicial, there was nothing to suggest a "clear disparity" between the degree
of prejudice and its probative value. Accordingly, a balance of the factors shows
the trial court did not abuse its discretion in admitting Arredondo's prior
Arredondo v. State Page 11 adjudication over his Rule 403 objection. His second issue is overruled.
SUFFICIENCY OF THE EVIDENCE
In his last three issues, Arredondo challenges the sufficiency of the
evidence to support his convictions under Counts I-IV, Sexual Assault (Issue
III), Count V, Indecency with a Child (Issue IV), and Counts VI and VII,
Prohibited Sexual Conduct (Issue V).
The Court of Criminal Appeals has expressed our standard of review of
a sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer "to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a "divide and conquer" strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App.
Arredondo v. State Page 12 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law as authorized by the indictment" includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
Arredondo contends the evidence is insufficient only because J.D.’s
testimony regarding the instances of sexual abuse is not credible. But it is the
jury’s duty as the sole factfinder to assess J.D.’s credibility and to resolve any
conflicts in the evidence or testimony. See Curry v. State, 622 S.W.3d 302, 310
(Tex. Crim. App. 2019); Zuniga v. State, 551 S.W.3d 729 (Tex. Crim. App.
2018). The jury determines the credibility of the witnesses and may believe
all, some, or none of the testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.
Arredondo v. State Page 13 Crim. App. 1986). We do not sit as the thirteenth juror or substitute our
judgment for that of the factfinder by reevaluating the weight and credibility
of the evidence. Edwards v. State, 666 S.W.3d 571, 574 (Tex. Crim. App. 2023).
J.D. testified extensively as to the instances and to the elements of
sexual assault, indecency, and prohibited sexual conduct by Arredondo. We do
not recount in detail every part of J.D.’s testimony but provide only his
testimony regarding the elements of each offense charged and other evidence
relevant to the jury’s credibility determination.
Sexual Assault
As defined by a hypothetically correct jury charge, a person commits the
offense of sexual assault of a child when the person intentionally or knowingly
causes the penetration of the mouth of a child, a person younger than 17 years
of age, by the sexual organ of the actor. TEX. PENAL CODE § 22.011(a)(2)(B);
(c)(1). J.D. testified that in 2013, when he was about thirteen years old,
Arredondo learned of J.D.’s sexual relationship with J.D.’s half-sister and
offered him three options as punishment for his behavior, one of the options
being oral sex. J.D. elected to perform oral sex on Arredondo because he
thought it would be the quickest and least painful option of punishment. A few
months later, in 2014, J.D. recalled performing oral sex on Arredondo a second
time after Arredondo learned of the continuing relationship between J.D. and
Arredondo v. State Page 14 his half-sister. J.D. said he was not allowed then to change the option for
punishment. He testified that he performed oral sex on Arredondo “several
dozen times” over the next few years.
Indecency
As defined by a hypothetically correct jury charge, a person commits the
offense of indecency with a child, if the person, with the intent to arouse or
gratify the sexual desire of any person, engages in sexual contact with the child
by touching the buttocks of the child by means of the sexual organ of the
person, and the child is younger than 17 years of age. TEX. PENAL CODE § 21.11
(a)(1), (c)(2). J.D. testified that before 2017, Arredondo entered J.D.’s room.
J.D. pretended to be sleeping. J.D. felt Arredondo remove J.D.’s shorts and felt
Arredondo’s penis between J.D.’s “butt cheeks,” but not penetrating J.D.’s
anus. J.D. also felt Arredondo ejaculate on his back.
Prohibited Sexual Conduct
As defined by a hypothetically correct jury charge, a person commits the
offense of prohibited sexual conduct if the person, with the intent to arouse or
gratify the sexual desire of any person, engages in deviate sexual intercourse
with another person the actor knows to be, without regard to legitimacy, the
actor’s descendant by blood by placing the genitals of the actor in contact with
the anus of another person. TEX. PENAL CODE § 25.02(a)(1), (b)(1). The
Arredondo v. State Page 15 biological father-son relationship between J.D. and Arredondo was established
by a birth certificate. J.D. testified that twice, Arredondo engaged in anal sex
with him. He described performing oral sex on Arredondo prior to Arredondo
inserting his penis into J.D.’s anus.
Other Relevant Evidence
J.D. was 24 years old at the time of the trial. He was born near the end
of November in 1999. The abuse by his father began when J.D. was
approximately 13 years old. J.D. made an outcry of abuse when he was 17
years old. J.D. voluntarily made a report to the Bellmead Police Department
regarding Arredondo’s abuse and his own abuse of his half-sister.
J.D.’s step-father testified at trial that J.D. told him that, as a form of
punishment, J.D. performed oral sex on Arredondo and that their sexual
relationship evolved to include anal sex. An officer with the Bellmead Police
Department and Dr. Burkley with the Advocacy Center for Crime Victims and
Children each testified that J.D. made an outcry of sexual abuse to them
individually. Additionally, Dr. Burkley and Dr. Carter, a practicing
psychologist, shared their expertise in the field of child sexual abuse,
explaining delayed outcry and other dynamics common to child sexual abuse.
It was within the jury’s province to believe J.D. and disbelieve
Arrendondo’s claims of J.D.’s untruthfulness. Accordingly, after reviewing all
Arredondo v. State Page 16 the evidence in the light most favorable to the jury's verdict and giving due
deference to the jury's weight and credibility determinations, we conclude that,
on the evidence presented, a rational trier of fact could have found the essential
elements of each offense beyond a reasonable doubt. Arredondo’s third, fourth,
and fifth issues are overruled.
Having overruled each issue on appeal, we affirm the trial court’s
judgments.
LEE HARRIS Justice
OPINION DELIVERED and FILED: November 20, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do Not Publish CR25
Arredondo v. State Page 17