Opinion filed August 20, 2026
In The
Eleventh Court of Appeals
__________
No. 11-24-00268-CR
__________
SAUNDRA LEA MARCOOT, Appellant V.
THE STATE OF TEXAS, Appellee
On Appeal from the 266th District Court Erath County, Texas
Trial Court Cause No. 24CRDC-00037
MEMORANDUM OPINION
The jury convicted Appellant, Saundra Lea Marcoot, of retaliation, a thirddegree felony, and assessed her punishment at confinement for ten years in the Correctional Institutions Division of the Texas Department of Criminal Justice. See TEX. PENAL CODE ANN. § 36.06(a)(1)(A), (c) (West Supp. 2025). Although Appellant was represented by counsel at trial, she is pro se on appeal. She challenges her conviction and sentence in several issues. We affirm.
Background Facts
This case stems from Appellant’s perceived injustices arising from an agreed custody order signed in 2018. The agreed custody order concerned Appellant’s son. The parties to the agreed custody order were Appellant’s grandmother, Judith Lynn Hallmark as the petitioner, Appellant as a respondent, and the father of the child as another respondent. Each of these parties signed the order along with the attorney for Hallmark and the Honorable Jason C. Cashon, presiding judge of the 266th District Court. Under the terms of the agreed custody order, Hallmark was named as the managing conservator of the child and Appellant and the father were named as possessory conservators. Further, the agreed custody order provided a visitation schedule for Appellant “in the absence of mutual agreement.”
Appellant grew disgruntled with the agreed custody order over the course of several years. Her dissatisfaction culminated in the charge with which she was convicted—threatening to harm Judge Cashon in November 2023.
Robbie Rudder is the bailiff of the 266th District Court. He testified that Appellant visited the courthouse on numerous occasions for the purpose of visiting with Judge Cashon about the agreed custody order and the custody of her child. On each occasion, either Rudder or the court coordinator advised Appellant that parties are not permitted to meet with or visit with the judge about a case. 1 Rudder testified 0F
that sometimes Appellant was polite, but that on other occasions she would be “animated” or “frenetic.” Rudder began dealing with Appellant exclusively after one occasion when she became enraged with the court coordinator. Rudder testified that he always advised Judge Cashon whenever Appellant visited the court. Rudder
1 “[J]udges are prohibited from permitting or considering ex parte communications from a party to pending litigation unless expressly authorized by law.” In re City of Lubbock, 666 S.W.3d 546, 556 (Tex. Crim. App. 2023) (orig. proceeding) (citing TEX. CODE JUD. CONDUCT, Canon 3(B)(8), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. B); Anderson v. State, 625 S.W.3d 128, 131 (Tex. Crim. App. 2021) (“[J]udges are ethically prohibited from receiving ex parte communications from a party.”).
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and Judge Cashon implemented a policy that Appellant would not be permitted entry to the courthouse if she was there to talk to the trial court about the custody case. She then started making phone calls to the court about the custody case in addition to coming to the courthouse to talk about the case.
Bethany Espinoza is a family law attorney in Stephenville. Espinoza testified that someone at Child Protective Services contacted her in 2018 to help Hallmark avoid a CPS removal of Appellant’s child. Espinoza stated that the matter was resolved by an agreed custody order that everyone signed, naming Hallmark as the primary conservator of the child. She further testified that, because it was an agreed order, Judge Cashon did not actually make a ruling in the case—he simply signed the agreed order.
Marissa Olvera is a legal assistant for Espinoza. In January 2023, Olvera received a threatening call from Appellant wherein Appellant angrily yelled that she knew that the law firm had a new location. During the call, Appellant threatened to “blow up” the law firm’s new location. Espinoza heard most of this phone call. The call was concerning to Espinoza because of a prior threat that Appellant had made. Espinoza and her law partner decided not to press charges for terroristic threat for the January 2023 call. Instead, they requested that the police issue a criminal trespass warning to Appellant.
Stephenville Police Officer Jake Overstreet is the officer that issued the criminal trespass warning to Appellant after the January 2023 call to Olvera. He did so by way of a recorded telephone call that was played at trial. At the beginning of the call, Appellant asked the officer if he was going to serve her with a criminal trespass warning. During the call, Appellant yelled at the officer that she was not a “crack head or some f-----g idiot.”
In July 2023, someone with the same name as Appellant made two comments on the Facebook page of Judge Cashon’s wife. The comments were made under a
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Mother’s Day post of pictures depicting Judge Cashon, his wife, and their children at a Renaissance Festival. In the first post, a person by the name “Saundra Hudson 2” 1F
typed “Cowards.” In the second post, “Saundra Hudson” posted the following:
Isn’t this nice. Must be nice to be apart of your child’s life.. You must be all about your husband’ the judge unlawfully removing children from their mothers.. Makes you wonder how y’all have all these things? I have some clue that you agree with this man unlawfully removing children.. Your no better than this man that cowardly has to put his head down when he walks by me’ Sad, Sad.. He’s supposed to be a honorable man. Honestly your jus as corrupt as the rest of them.. I’ve tried to be calm & now I’m beyond mad.. It’s sad cause the recording I have of [Olvera] admitting the judge did wrong & should have given my son back, 2019 he unlawfully removed [Appellant’s son] placed him with my 80yr old grandmother’ [Appellant’s son] was 8month when he was removed with no ability to get him back & on top of that he’s non verbal Autistic’ Mrs Cashon please help me get my son back, your a mother you should understand we’re I’m coming from.. Please Mrs Cashon help me I need my Autistic son.. Please Mrs Cashon Judge Cashon’s wife testified that these posts alarmed her. She advised Judge Cashon of the posts. His wife additionally testified that steps were taken after these posts to keep close watch on her children while they were at school.
On August 1, 2023, Appellant mistakenly called the county judge’s office instead of calling the district court. Rudder identified Appellant as the person who left a voicemail message that began with the caller saying, “I want to know what Judge Jason Cashon is going to do to give me my child back.” The caller identified the child by his first name, and she accused Judge Cashon of being a “coward” based on her alleged observation of Judge Cashon in a convenience store.
On August 31, 2023, Appellant called the Erath County Sheriff’s Office.
Appellant began the call by saying that she wanted to see her son. She stated during the call while screaming and yelling profanities that she was “going to start doing
2 It was established at Appellant’s arraignment that she sometimes uses the last name of “Hudson.”
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things” if she did not get to see her son. A one point Appellant asked the dispatcher if she needed to go get her “AR rifle” in order to see her son or that someone is going to get hurt. Appellant also told the dispatcher “so get your sheriff because I’m going to get my 9 millimeter.”
At one point during her call to the sheriff’s office, Appellant told her girlfriend that she was going to hang up and “f-----g kill all three of them.” Appellant’s call to the sheriff’s office led to an involuntary mental health detention of her at John Peter Smith Hospital in Fort Worth. Appellant was discharged from the hospital after an evaluation with a diagnosis of “[a]djustment disorder with disturbance of conduct.”
On October 17, 2023, Lea Rodriguez, the assistant to the Stephenville Police Chief, received a call for the chief from a female about a child custody matter. She described the caller as “frustrated” and “upset.” The caller wanted to speak to the chief, and when told that the chief was not available, the caller told Rodriguez that she would go to the chief’s house to see him. The caller did not identify herself during the call. A recording of the call was played to the jury. During the call, the caller stated, “this is not a joke” and “I’m not playing y’all’s sick demented games.” The caller said that she had “no more cares” and that “it is about to [be] a very very bad situation.” The caller also referenced that she may need to “bear arms for safety” based on her perceived fear of the police.
The call that is the subject of Appellant’s indictment and subsequent conviction occurred over the Thanksgiving holidays in 2023. The caller, who did not identify herself, left a voicemail message directed at “Mr. Cashon.” The caller stated:
You know Mr. Cashon, I tried to be cool, I tried to be calm, cool, and collected with you, but the audacity for you to pull child support out of my check 3 when you unlawfully removed my child to begin with. You 2F
3 Judge Cashon testified that he reviewed the case file of the custody case and that he had not signed a child support order in the case.
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may think this is some kind of sick game. No sir, this is no sick game, and you watch me come through the back door because enough is enough of your corrupt a-s bulls--- that you go around doing.
The caller’s voice crescendoed to screaming as it was nearing the end of the call.
Rudder recognized Appellant’s voice as the caller on the Thanksgiving call.
This call alarmed Rudder because Appellant’s rhetoric had escalated from her previous communications with the court. Additionally, Rudder testified that the back door that she referred to was Judge Cashon’s private entrance to the courthouse annex. Rudder testified that the back door is not readily viewable by the public and it was concerning that Appellant knew of its existence. Judge Cashon testified that he viewed Appellant’s comment that she would come through the back door as a threat to commit harm.
During her case-in-chief, Appellant called her mother, Jana Marcoot, as a witness. 4 In her testimony, Marcoot focused on the 2018 custody proceedings.
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Marcoot testified that she wanted to have custody of Appellant’s child but that the child’s father would only permit Hallmark to have custody of the child. She indicated that no one read the agreed custody order and testified that the parties did not know what they were signing. On cross-examination, the State asked Marcoot who the three people were that Appellant threatened to kill during her call to the Erath County Sheriff’s Office, Marcoot testified that it was probably herself, Hallmark, and her son, Chad Marcoot. In that regard, Marcoot testified that Hallmark had given her custody of the child and that Appellant was mad because Marcoot would not let Appellant see the child. Marcoot testified that the agreed custody order restricted the time that Appellant could see the child.
Hallmark testified that she did not know what she was signing when she signed the agreed custody order in 2018. She further testified that she could not let
4 We will refer to Appellant’s mother as “Marcoot” in this opinion.
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Appellant see the child at times “because of the court order” and Appellant’s mental health issues.
Appellant testified during her case-in-chief. She testified that she was forced to sign the agreed custody order. Appellant testified that she was also tricked into signing the agreed custody order to keep her son from going into foster care. Appellant further testified that she did not have the money to “fix this” situation by hiring an attorney.
On cross-examination, Appellant denied posting anything on Judge Cashon’s wife’s Facebook page. Appellant also denied saying on a recording that Judge Cashon was a coward. Appellant confirmed that the three people she was referencing during her call to the sheriff’s office were Hallmark, Marcoot, and her brother, Chad. Also, Appellant denied that she sometimes “snap[s].”
Analysis
At the outset, we note that Appellant failed to adhere to the briefing standards required by the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 38.1. The Texas Rules of Appellate Procedure require an appellant to “state concisely all issues or points presented for review” and to provide “a clear and concise argument” for each issue raised, “with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(f), (i). Although Appellant’s brief does not meet all the requirements of Rule 38.1, we will construe the briefing rules liberally and attempt to address the issues raised in her brief. See TEX. R. APP. P. 38.9. Based upon our review of Appellant’s brief and her supplemental filings, we believe that Appellant asserts the following issues: (1) sufficiency of the indictment; (2) sufficiency of the evidence; (3) admission of extraneous evidence; (4) lack of a pretrial hearing; (5) ineffective assistance of counsel; (6) discovery violations by the State; (7) permitting self-representation; (8) procedural errors; (9) improperly obtained evidence; and (10) permitting Rudder to serve as bailiff while also being a witness.
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Further, Appellant has attached several evidentiary documents to her briefs as an appendix. We may not consider evidence or other documents that litigants attach as exhibits to their appellate brief or in their appendix, which are not part of the appellate record. See Unger Tex. Stone, LP v. Deere Credit, Inc., 735 S.W.3d 917, 922 n.5 (Tex. App.—Eastland 2026, no pet.) (collecting cases).
The Indictment Sufficiently Charged the Offense of Retaliation In her first issue, Appellant challenges the sufficiency of the indictment. “Our constitution guarantees an accused the right to demand the nature and cause of the action against him, and to have a copy thereof.” State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998) (citing TEX. CONST. art. I, § 10). An indictment serves two functions: (1) to provide notice of the offense to allow a defendant to prepare a defense; and (2) to vest jurisdiction in the trial court. Cook v. State, 902 S.W.2d 471, 475–76 (Tex. Crim. App. 1995), abrogated on other grounds by Jenkins v. State, 592 S.W.3d 894, 896 (Tex. Crim. App. 2018). To constitute an indictment, an instrument must charge a person with the commission of an offense. Id. at 477. An instrument qualifies as an indictment if it “include[s] one or more allegations necessary to give notice of the statutory offense with which the defendant was charged.” Duron v. State, 956 S.W.2d 547, 551 (Tex. Crim. App. 1997). “Subject to rare exceptions, an indictment tracking the language of the statute will satisfy constitutional and statutory requirements.” Mays, 967 S.W.2d at 406.
As relevant to this appeal, a person commits retaliation if she intentionally or knowingly threatens to harm another by an unlawful act in retaliation for or on account of the service of another as a public servant. PENAL § 36.06(a)(1)(A). By definition, a judge is a public servant. Id. § 1.07(a)(41)(A). The indictment charged Appellant with intentionally or knowingly threatening:
to harm another, namely: Jason Cashon, complainant, by an unlawful act, namely: threatening to bypass courthouse security to enter the
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secure premises of a judicial court facility to confront or assault Complainant, in retaliation for or on account of the service of Complainant as a public servant, namely: District Judge, presiding over family law matters to which the defendant was a party.
“The proper test to determine if a charging instrument alleges ‘an offense’ is whether the allegations in it are clear enough that one can identify the offense alleged. If they are, then the indictment is sufficient to confer subject matter jurisdiction.” Teal v. State, 230 S.W.3d 172, 180 (Tex. Crim. App. 2007) (quoting Cook, 902 S.W.2d at 481 (Maloney, J., concurring)). Because the indictment here tracked the language of the criminal offense of retaliation, it was sufficient to charge Appellant with the offense. We overrule Appellant’s first issue.
Sufficiency of the Evidence In her second issue, Appellant challenges the sufficiency of the evidence supporting her conviction. We review a challenge to the sufficiency of the evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all the evidence admitted at trial, including pieces of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the sole judge of the witnesses’ credibility and the weight witness testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to draw
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reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
We measure the sufficiency of the evidence by the elements of the offense as defined in a hypothetically correct jury charge. 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.
Evidence of a threat to harm another by “an unlawful act” will support a conviction for retaliation under the statute. See PENAL § 36.06(a); Meyer v. State, 366 S.W.3d 728, 731 (Tex. App.—Texarkana 2012, no pet). Under the Texas Penal Code, the word “unlawful” is defined as “criminal or tortious or both.” PENAL § 1.07(a)(48). The word “harm” is defined as “anything reasonably regarded as loss, disadvantage, or injury.” Id. § 1.07(a)(25). A threat of physical injury is not required. See Meyer, 366 S.W.3d at 731. “That a threat is subtle does not make it less of a threat.” Manemann v. State, 878 S.W.2d 334, 337 (Tex. App.—Austin 1994, pet. ref’d) (citing United States v. Gilbert, 884 F.2d 454, 457 (9th Cir. 1989)).
A factfinder may evaluate the comments supporting a retaliation charge in the context within which they were uttered, and the defendant’s retaliatory intent may be inferred from her acts, words, or conduct. Meyer, 366 S.W.3d at 731; In re B.P.H., 83 S.W.3d 400, 407 (Tex. App.—Fort Worth 2002, no pet.). In this regard, alleged threats should be considered in light of their entire factual context, including the reaction of the listeners and the surrounding events. Manemann, 878 S.W.2d at 337 (citing United States v. Orozco–Santillan, 903 F.2d 1262, 1265 (9th Cir.1990);
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United States v. Mitchell, 812 F.2d 1250, 1255 (9th Cir.1987)). “Whether a particular statement may properly be considered to be a threat is governed by an objective standard—whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.” Id. (first citing Orozco–Santillan, 903 F.2d at 1265; and then citing Mitchell, 812 F.2d at 1255–56).
Here, in addition to the audio recording of the voicemail message to Judge Cashon, there are other calls and communications from Appellant directed to Judge Cashon. 5 These communications establish a pattern of escalating threats of harm to 4F
Judge Cashon and others. In addition to supporting the allegation that Appellant was the caller on the Thanksgiving call, the other communications established the context of what Appellant was threatening to do when she stated, “you watch me come through the back door.” Viewed objectively, a reasonable person would foresee that the Thanksgiving call, coupled with her previous communications, would be interpreted by Judge Cashon as a serious expression of intent to harm or assault him. See Manemann, 878 S.W.2d at 337; Peters v. State, No. 09-15-00166-CR, 2016 WL 3136114, at *7 (Tex. App.—Beaumont June 1, 2016, pet. ref’d) (mem. op., not designated for publication) (collecting cases of threatening calls that constituted retaliation). Further, Appellant’s reference to coming “through the back door” suffices to establish that Appellant threatened to harm Judge Cashon by an unlawful act in the form of evading the public door to the courthouse annex and coming through a door with restricted access. Cf. Meyer, 366 S.W.3d at 732.
Based on the combined and cumulative force of all the evidence and testimony that the State presented to the jury and viewing the evidence in a light most favorable
5 As set out below, Appellant challenges the admission of the other communications. Her admissibility challenge does not affect our review of the sufficiency of the evidence to support her conviction. See Winfrey, 393 S.W.3d at 767; Clayton, 235 S.W.3d at 778.
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to the verdict, we conclude that the evidence was sufficient to allow a rational jury to conclude beyond a reasonable doubt that Appellant intentionally made threats to harm Judge Cashon by an unlawful act. Accordingly, the evidence was sufficient to support Appellant’s conviction for retaliation. We overrule Appellant’s second issue.
Admissibility of Extraneous Communications In her third issue, Appellant contends that the trial court erred by admitting evidence subject to a motion in limine with respect to her other communications about Judge Cashon. A motion in limine is “a method of raising objection to an area of inquiry prior to the matter reaching the ears of the jury through a posed question, jury argument, or other means.” Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim. App. 1975). “However, it is also, by its nature, subject to reconsideration by the court throughout the course of the trial. This is because it may not be enforced to exclude properly admissible evidence.” Id. A motion in limine is not a ruling that excludes evidence; rather, it merely requires the parties to approach the trial court for a definitive ruling before attempting to present evidence within the scope of the trial court’s limine order. Bobo v. State, 757 S.W.2d 58, 61 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d). The trial court’s ruling on a motion in limine is a preliminary ruling only and normally preserves nothing for appellate review. Geuder v. State, 115 S.W.3d 11, 14–15 (Tex. Crim. App. 2003).
Irrespective of Appellant’s complaint with respect to the motion in limine, we will address whether the trial court erred in ruling that the evidence of the extraneous communications was admissible. After voir dire, the trial court conducted a hearing outside of the presence of the jury to determine whether the extraneous communications would be admissible at trial. The State argued at the hearing that, “in isolation, [the Thanksgiving] call is fairly vague, and, in isolation, may be even
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viewed, by some, as venting, innocuous anger.” The State asserted that Appellant’s other communications showed both her intent and identity for the Thanksgiving call.
Appellant objected to the admissibility of the extraneous communications on the basis that they constituted punishment evidence because the State chose to only indict Appellant for the Thanksgiving call. In response, the trial court raised Rule 404(b) and Rule 403 as concerns with respect to the extraneous communications. See TEX. R. EVID. 403, 404(b). In ruling that the extraneous communications would be admissible, the trial court noted that:
it ties to a central theme, which is this all relates to the child, every bit of it relates to the child. And then goes to a material relevant fact of consequence in the case, which is what was the defendant’s intent and to identify the defendant as being the person who made the calls.
The trial court also announced that it determined that the probative value of this evidence was not substantially outweighed by unfair prejudice and granted Appellant’s request for a running objection to the admission of the extraneous communications. Additionally, the trial court announced that it would give a limiting instruction each time one of the extraneous communications was admitted.
We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We will uphold the trial court’s decision unless it lies outside the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001).
A trial court’s ruling to admit extraneous-offense evidence will be upheld if it is “within the zone of reasonable disagreement.” Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). A trial court’s ruling on extraneous-offense evidence is generally within the zone of reasonable disagreement “if the evidence shows that 1) an extraneous transaction is relevant to a material, non-propensity issue, and 2) the probative value of that evidence is not substantially outweighed by the danger
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of unfair prejudice, confusion of the issues, or misleading of the jury.” De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Extraneous-offense evidence must be admissible under Rule 404(b). Rule 404(b) states that extraneous-offense evidence is generally not admissible “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character,” but “may be admissible 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). And finally, even if extraneous-offense evidence is admissible under these rules, it still may be excluded under Rule 403 if the probative value of the evidence is substantially outweighed by its unfairly-prejudicial impact. TEX. R. EVID. 403.
“Rule 404(b) is a rule of inclusion rather than exclusion.” De La Paz, 279 S.W.3d at 343. Thus “if evidence (1) is introduced for a purpose other than character conformity, (2) has relevance to a fact of consequence in the case, and (3) remains free of any other constitutional or statutory prohibitions, it is admissible” under Rule 404(b). Segundo v. State, 270 S.W.3d 79, 88 n.19 (Tex. Crim. App. 2008) (internal quotation marks omitted). Whether extraneous-offense evidence has relevance apart from character conformity is a question for the trial court. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
As previously noted, Rule 404(b)(2) allows admission of extraneous-offense evidence “for another purpose, such as proving motive, opportunity, intent [or] . . . identity.” TEX. R. EVID. 404(b)(2). Here, there were at least two such other purposes. First, the caller on the Thanksgiving call did not identify herself. As such, the caller’s identity was an issue to be resolved and the extraneous communications were probative of Appellant’s identity as the caller. Additionally, the extraneous communications were probative of the caller’s intent in making the call as well as the escalating nature of the threat that she was making in the call. Therefore, the
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trial court did not abuse its discretion by determining that the extraneous communications were not impermissible character-conformity evidence under Rule 404(b).
We also conclude that the trial court did not abuse its discretion by determining that Rule 403 did not preclude the admission of the extraneous communications. Under Rule 403, a trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of “unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403; see Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009). “Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial.” Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002); Render v. State, 347 S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d). Evidence is unfairly prejudicial when it has the undue tendency to suggest an improper basis for reaching a decision. Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000); Render, 347 S.W.3d at 921.
In reviewing a trial court’s determination under Rule 403, a reviewing court will reverse the trial court’s judgment “rarely and only after a clear abuse of discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990)). When conducting a Rule 403 analysis, the trial court must balance the following factors:
(1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that 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
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evidence will consume an inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). These factors may well blend together in practice. Id.
The first Gigliobianco factor focuses on the inherent probative force of the proffered evidence. Id. at 641. As the Court of Criminal Appeals explained in Gigliobianco, “probative value” is more than just relevance. Id. It refers to how strongly an item of evidence “serves to make more or less probable the existence of a fact of consequence to the litigation[,] coupled with the proponent’s need for that item of evidence.” Id. As noted by the State at trial, Appellant’s extraneous communications had “hallmark” elements that were also present in the Thanksgiving call. As such, the extraneous communications had significant probative force. Thus, the first factor weighs in favor of admission.
The second Gigliobianco factor focuses on the proponent’s need for the evidence. Id. Here, as we have noted, the State needed the evidence to establish the identity and intent of the caller on the Thanksgiving call. Therefore, the second factor also weighs in favor of admission.
The remaining Gigliobianco factors focus on the potential negative effects of the proffered evidence. Garcia v. State, 630 S.W.3d 264, 269 (Tex. App.—Eastland 2020, no pet.). The third factor focuses on the tendency of the evidence to suggest a decision on an improper basis. Id. at 268. Evidence is not excludable under Rule 403 if it is merely prejudicial; “all evidence against a defendant is . . . designed to be prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013). Instead, Rule 403 is concerned with evidence that is unfairly prejudicial. Gigliobianco, 210 S.W.3d at 641; see Pawlak, 420 S.W.3d at 811. The fourth factor focuses on the potential of the proffered evidence to confuse or distract the jury from the main issues, and the fifth factor focuses on the potential of the proffered evidence
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to mislead the jury. Roe v. State, 660 S.W.3d 775, 785 (Tex. App.—Eastland 2023, pet. ref’d).
There is nothing in the record to indicate that the evidence of the extraneous communications confused the jury, was given undue weight by the jury, or resulted in a decision based on an improper basis. As noted by the trial court, each of the extraneous communications concerned the custody of Appellant’s child. They all occurred within a one-year period, and they provided context for the Thanksgiving call to show the escalating nature of Appellant’s threats against Judge Cashon. Additionally, the trial court instructed the jurors that they could not consider the extraneous communications for any purpose unless they found beyond a reasonable doubt that Appellant committed these wrongful acts. The trial court further instructed the jury they could not consider this evidence to prove that Appellant is a “bad person,” but rather only for specific limited purposes. We presume that the jury followed the trial court’s instructions. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). Therefore, the third, fourth, and fifth factors do not weigh in favor of exclusion.
The sixth Gigliobianco factor examines the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. 210 S.W.3d at 642. The presentation of the extraneous communications did take a bit of time, but it does not appear to be inordinate. Further, the extraneous communications were not duplicative of other evidence. Thus, the sixth factor is at best neutral.
Rule 403 contemplates excluding evidence only when there is a “clear disparity” between the offered evidence’s prejudice and its probative value. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). Considering the standard of review, the presumption favoring admissibility of relevant evidence, and the
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Gigliobianco factors, we cannot conclude that the trial court abused its discretion in admitting the complained-of evidence. See id. (“Because Rule 403 permits the exclusion of admittedly probative evidence, it is a remedy that should be used sparingly.”). We overrule Appellant’s third issue.
Lack of a Pretrial Hearing In her fourth issue, Appellant contends that the trial court erred by failing to conduct a pretrial hearing “[w]here evidence should have been present.” The appellate record does not support this contention because it shows that the trial court conducted multiple pretrial hearings in Appellant’s case. Accordingly, we overrule Appellant’s fourth issue.
Ineffective Assistance of Counsel In her fifth issue, Appellant asserts that she received ineffective assistance of counsel at trial. To prevail on a claim of ineffective assistance of counsel, an appellant must establish that: (1) her trial counsel rendered deficient performance in that it fell below an objective standard of reasonableness; and (2) counsel’s deficient performance prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte Lane, 670 S.W.3d 662, 671 (Tex. Crim. App. 2023). “Failure to succeed on either prong is fatal to the ineffectiveness claim.” Lane, 670 S.W.3d at 671.
“An attorney is deficient if his performance falls below an objective standard of reasonableness under the prevailing professional norms, considering the facts of the case viewed from counsel’s perspective at the time of the representation.” Id. (citing Strickland, 466 U.S. at 687–88, 690). “There is ‘a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’” Hart v. State, 667 S.W.3d 774, 781 (Tex. Crim. App. 2023) (quoting Strickland, 466 U.S. at 689).
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“The mere fact that another attorney might have pursued a different tactic at trial does not suffice to prove a claim of ineffective assistance of counsel.” Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012). Counsel’s performance “is judged by the totality of the representation, not by counsel’s isolated acts or omissions, and the test is applied from the viewpoint of an attorney at the time he acted, not through 20/20 hindsight.” Id. (internal quotation marks omitted).
“Claims of ineffective assistance must be firmly rooted in the record.” Hart, 667 S.W.3d at 782. “Under most circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the strong presumption that counsel’s conduct was reasonable and professional.” Id. (quoting Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004)). Counsel’s actions are deficient only if the reviewing court finds that “no reasonable trial strategy could justify trial counsel’s acts or omissions, regardless of his or her subjective reasoning.” Id. (quoting Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011)).
In assessing whether counsel’s performance fell below an objective standard of reasonableness, we must look to the record for any strategic motive for counsel’s actions. See Strickland, 466 U.S. at 687–88; Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013). On a silent record, a reviewing court may only find ineffective assistance of counsel if the challenged conduct was so outrageous that no competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“[I]n the absence of evidence of counsel’s reasons for the challenged conduct, an appellate court ‘commonly will assume a strategic motivation if any can possibly be imagined,’ and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it.”) (quoting 3 Wayne R. LaFave
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et al., Criminal Procedure § 11.10(c) (2d. ed. 1999)). To meet her burden to prove the prejudice prong, Appellant must show that there is a reasonable probability that the result of her trial would have been different but for trial counsel’s errors. See Swinney v. State, 663 S.W.3d 87, 90 (Tex. Crim. App. 2022); Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. at 694.
At the outset, we note that Appellant did not file a motion for a new trial.
Appellant filed a post-trial “motion for mistrial,” however, there was no hearing on the motion. Further, the motion for mistrial was not filed within the required thirtyday period for filing a motion for new trial. See TEX. R. APP. P. 21.4. Thus, trial counsel has not had an opportunity to explain or defend his trial strategy in response to the matters that Appellant contends were deficient. The Court of Criminal Appeals has stated that “trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
Appellant devotes the bulk of her pro se briefing on her claim of ineffective assistance of trial counsel. Her complaints are directed at two attorneys. Appellant was initially represented by Lisa Madkins. Appellant faults Madkins for waiving arraignment and a pretrial hearing. However, the reporter’s record reflects that the trial court conducted arraignment on March 19, 2024, and April 2, 2024, and multiple pretrial hearings. Accordingly, the record does not indicate any harm to Appellant from Madkins’s representation.
The remainder of Appellant’s complaints are directed at the attorney that represented her at trial, Andrew Ottaway. Appellant makes numerous contentions about matters that she contends Ottaway should have objected to and matters that he should have tried to offer into evidence. When alleging ineffective assistance of
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counsel for the failure to object, an appellant must demonstrate that the trial court would have erred in overruling an objection had trial counsel made one. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). Appellant makes no attempt to establish this showing. Many of her complaints are directed toward her desire to relitigate the 2018 custody case in the criminal case. The trial court advised Appellant and her counsel prior to trial that it was not going to permit her to relitigate the custody case in the criminal case. Thus, it would have been futile for Ottaway to attempt to offer the matters that Appellant wanted him to offer. Further, we are hard-pressed to agree with Appellant’s essential argument that threats to Judge Cashon are somehow justified by her perceived injustices arising from the custody case.
Finally, the manner in which Ottaway represented Appellant at trial is inherently a matter of trial strategy. In the absence of an explanation from him in a hearing before the trial court, we are unable to conclude that his representation fell below an objective standard of reasonableness, or that the results of Appellant’s trial would have been any different. We overrule Appellant’s fifth issue.
Alleged Discovery Violations by the State In her sixth issue, Appellant asserts that the State committed discovery violations. “Ordinarily, a conviction is not overturned unless the trial court makes a mistake.” Johnson v. State, 169 S.W.3d 223, 228–29 (Tex. Crim. App. 2005). Thus, most appellate issues are directed at the conduct of the trial court rather than opposing counsel. Rodriguez v. State, No. 11-17-00214-CR, 2020 WL 1887716, at *8 (Tex. App.—Eastland Apr. 16, 2020, pet. ref’d) (mem. op., not designated for publication). Here, Appellant does not point to any rulings made by the trial court with respect to objections based upon alleged discovery violations.
Rule 33.1 of the Texas Rules of Appellate Procedure governs the preservation of appellate complaints. See TEX. R. APP. P. 33.1. To preserve error for appellate
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review under Rule 33.1, the record must show that (1) the complaining party made a timely and specific request, objection, or motion and (2) the trial court either ruled on the request, objection, or motion (expressly or implicitly), or it refused to rule and the complaining party objected to that refusal. See Geuder, 115 S.W.3d at 13. Failure to preserve the error at trial forfeits the later assertion of that alleged error on appeal. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (citing Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999)). Because Appellant failed to preserve error for any alleged discovery violations by the State, we overrule Appellant’s sixth issue.
Permitting Self-Representation In her seventh issue, Appellant appears to be asserting that the trial court erred by permitting her to represent herself for a period of time. We note in this regard that Appellant desired to be assisted by Marcoot, a non-attorney, at trial. Marcoot also attempted to file pleadings on Appellant’s behalf. 6 A non-lawyer may not 5F
represent a party in litigation by filing pleadings on the party’s behalf because it constitutes the unauthorized practice of law. See Rodriguez v. Marcus, 484 S.W.3d 656, 657 (Tex. App.—El Paso 2016, no pet.).
Appellant does not complain that the trial court failed to properly admonish her of the dangers of self-representation as required by Faretta v. California, 422 U.S. 806, 835 (1975). The trial court permitted Appellant to represent herself for a brief period. However, the trial court also appointed standby counsel for Appellant. The trial court subsequently determined that Appellant was unable to represent
6 The trial court explained to Appellant it would not permit her to have hybrid representation in the form of permitting Marcoot to file motions on Appellant’s behalf while she was represented by counsel. “Although a trial court has discretion to permit hybrid representation, there is no absolute right to such representation.” Ganther v. State, 187 S.W.3d 641, 648 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (first citing Hathorn v. State, 848 S.W.2d 101, 123 n.12 (Tex. Crim. App. 1993); and then citing Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989)).
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herself, and it appointed Ottaway as her attorney. Because the record does not indicate that Appellant suffered any harm during the brief period she represented herself, we overrule Appellant’s seventh issue.
Procedural Errors Appellant’s eighth issue concerns various alleged procedural errors. For example, she cites the order in which rulings were made and then filed by the district clerk, the time when jurors were told to report, and the reason given for granting a motion for continuance. Even if we were to assume that the matters cited by Appellant were errors, such errors would be harmless. Rule 44.2(b) of the Texas Rules of Appellate Procedure applies to nonconstitutional errors. TEX. R. APP. P. 44.2(b). When an appellate court applies Rule 44.2(b), it must disregard a nonconstitutional error unless the error affects the appellant’s substantial rights. Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). 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.” Id. (quoting Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001)). Here, we have fair assurance that the procedural matters cited by Appellant did not have a substantial and injurious effect or influence in determining the jury’s verdict. See Parker v. State, 727 S.W.3d 38, 67 (Tex. Crim. App. 2025), cert. denied, 224 L. Ed. 2d 838 (2026) (citing Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004)). We overrule Appellant’s eighth issue.
Improperly Obtained Evidence In her ninth issue, Appellant contends that the trial court erred by admitting evidence obtained as a result of unreasonable searches and seizures. However, the reporter’s record does not contain any trial court rulings on a motion to suppress or trial objections that Appellant made that presented these contentions. Error is
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preserved for appellate review by making a timely and specific objection or motion at trial, after an adverse ruling by the trial court. Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999); see TEX. R. APP. P. 33.1. Because Appellant has not preserved this complaint for appellate review, we overrule her ninth issue. See Barrera v. State, No. 03-24-00087-CR, 2025 WL 3759365, at *5 (Tex. App.— Austin Dec. 30, 2025, no pet.) (mem. op., not designated for publication) (Because the trial court did not rule on the appellant’s motion to suppress, “any issues raised in it were not preserved.”); Williams v. State, No. 04-02-00161-CR, 2002 WL 31015258, at *2 (Tex. App.—San Antonio Sept. 11, 2002, no pet.) (not designated for publication) (suppression issue waived by failure to object).
Rudder Serving as Bailiff Finally, in her tenth issue, Appellant asserts that Rudder improperly served as both a witness and as a bailiff at trial. We note at the outset that Appellant initially raised this complaint in her 176-page reply brief. Generally, new issues raised in a reply brief should not be considered. Chambers v. State, 580 S.W.3d 149, 161 (Tex. Crim. App. 2019). But even if we were to consider this issue on the merits, the record does not support Appellant’s contention.
Article 36.24 provides that a person called as a witness in the case may not serve as bailiff “to attend to the wants of the jury.” TEX. CODE CRIM. PROC. ANN. art. 36.24 (West 2006). Other than an instance when Rudder assisted the prosecutor to play an audio recording for the jury, the record does not reflect that Rudder served as bailiff to assist the jury during its deliberations or to attend to the jury’s needs. Further, Appellant made no objection based on Rudder serving as bailiff at trial. As such, Appellant failed to preserve this complaint for appellate review. See Burg v. State, 592 S.W.3d 444, 452 (Tex. Crim. App. 2020) (“Rule 33.1 requires a contemporaneous objection to preserve error for appeal.”). We overrule Appellant’s tenth issue.
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This Court’s Ruling
We affirm the judgment of the trial court.
PER CURIAM
August 20, 2026 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.