IN THE
TENTH COURT OF APPEALS
No. 10-12-00108-CR
JOSE GUADALUPE RODRIGUEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court
Navarro County, Texas
Trial Court No. C-33837-CR
MEMORANDUM OPINION
In two issues, appellant, Jose Guadalupe Rodriguez, challenges his convictions
for sexual assault of a child and indecency with a child. See TEX. PENAL CODE ANN. §§
21.11(a)(1), 22.011(a)(2)(A) (West 2011). Specifically, Rodriguez argues that the trial
court erred in allowing the State to present inadmissible extraneous-offense evidence in
violation of the Texas Rules of Evidence. See TEX. R. EVID. 401-04. We affirm.1
1 We note that, throughout his brief, Rodriguez repeatedly refers to the child victim and her
family by their given names. However, Texas Rule of Appellate Procedure 9.8(c)(1) requires that, except
I. BACKGROUND
In this case, Rodriguez was accused of penetrating the genitals of E.T., a child
younger than seventeen years of age, and causing E.T. to touch his genitals with intent
to arouse or gratify his sexual desire. The incident allegedly transpired on or about
March 27, 2011, while Rodriguez rode in the car with E.T.’s family. Trial testimony
revealed that Rodriguez is E.T.’s uncle. On the day in question, the family got together
to attend the funeral of E.T.’s grandfather. Among those in attendance was E.T.’s sister,
who had traveled from college in Ranger, Texas, to attend the funeral.
Following the burial and wake, E.T.’s family, including her mother, father, and
Rodriguez, drove E.T.’s sister back to Ranger. During the drive, Rodriguez sat in the
back seat with E.T. At some point during the drive, the family stopped at a rest area on
the northbound side of I-45 in Navarro County so that everyone could sleep. E.T.
testified that, while everyone slept, Rodriguez put his hand on her leg, moved his hand
up her leg, put his hand under her shorts, and eventually put his finger inside her
vagina. E.T. did not say anything while the assault transpired because she felt as if she
could not speak. Later, Rodriguez allegedly grabbed E.T.’s hand and forced her to
touch his penis. E.T. asserted that she could not remove her hand because Rodriguez
was too strong. In any event, the assault stopped when a phone alarm went off. E.T.
was fourteen years of age when the incident occurred.
for a docketing statement, in all papers submitted to the Court, a minor and his or her parents and family
members should be identified only by an alias. See TEX. R. APP. P. 9.8(c)(1).
Rodriguez v. State Page 2
E.T. did not tell anyone about the incident for several days. However, in the
days following the incident, E.T. recalled being scared when Rodriguez repeatedly tried
to visit her while she was home alone and later when Rodriguez tried to put her foot in
his mouth while she sat in his truck. E.T. eventually told her priest about the incident.
E.T.’s priest encouraged E.T. to tell her mother, which she did. E.T.’s mother
subsequently told E.T.’s father. The next day, E.T.’s parents confronted Rodriguez’s
wife about what Rodriguez had allegedly done. That same night, Rodriguez allegedly
broke into E.T.’s house in Chambers County, Texas; held E.T.’s mother at gunpoint; and
demanded that E.T. be brought to him so that he could interrogate her. Rodriguez told
E.T.’s mother that he was upset that his wife had been informed about the incident. In
addition, Rodriguez stated that the family would pay for ruining his life. Rodriguez
denied raping E.T., but he did admit to touching her.
Thereafter, Rodriguez was apprehended by police. While Rodriguez was in
custody, E.T.’s father found a letter written by Rodriguez in the house. In the letter,
Rodriguez apologized for touching E.T.; however, he denied raping her because there
was no blood.
During trial, Rodriguez objected to the introduction of evidence pertaining to the
alleged break-in and confrontation at gunpoint with E.T.’s mother. The trial court
overruled Rodriguez’s objections.
At the conclusion of the evidence, the jury found Rodriguez guilty of the charged
offenses and sentenced him to fifteen years’ incarceration in the Institutional Division of
the Texas Department of Criminal Justice for each count. The trial court ordered that
Rodriguez v. State Page 3
the sentences run consecutively. Rodriguez subsequently filed a motion for new trial,
which was overruled by operation of law. See TEX. R. APP. P. 21.8(a), (c). This appeal
followed.
II. STANDARD OF REVIEW
We review the trial court’s admission of extraneous-offense evidence for an
abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If
the trial court’s ruling is within the zone of reasonable disagreement, there is no abuse
of discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005); see Brown v.
State, 6 S.W.3d 571, 578 (Tex. App.—Tyler 1999, pet. ref’d) (“The trial court is given
wide latitude to admit or exclude evidence of extraneous offenses.”). A trial court’s
ruling on the admissibility of an extraneous offense is generally within this zone 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 of unfair prejudice, confusion of the issues, or misleading the
jury. De La Paz, 279 S.W.3d at 344. We consider the ruling in light of what was before
the trial court at the time the ruling was made and uphold the trial court’s decision if it
lies within the zone of reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39
(Tex. Crim. App. 2009).
III. EXTRANEOUS-OFFENSE EVIDENCE
A. Relevance of the Extraneous-Offense Evidence
In his first issue, Rodriguez contends that the trial court erred in admitting
evidence that he held E.T.’s mother at gunpoint several days after the alleged incident
Rodriguez v. State Page 4
transpired. Specifically, Rodriguez argues that the admission of this evidence violated
Texas Rule of Evidence 402 and that Article 38.37 of the Texas Code of Criminal
Procedure does not apply to this set of facts. See TEX. R. EVID. 402; see also TEX. CODE
CRIM. PROC. ANN. art. 38.37, § 2 (West Supp. 2012).
Relevant evidence is evidence that has any tendency to make the existence of any
fact of consequence to the determination of the action more or less probable than it
would be without the evidence. TEX. R. EVID. 401. If the evidence is not relevant, it is
not admissible. Id. at R. 402. In deciding whether evidence is relevant, a trial court
should ask whether a reasonable person, with some experience in the real world, would
believe the evidence is helpful in determining the truth or falsity of any fact that is of
consequence to the case. Hernandez v. State, 327 S.W.3d 200, 206 (Tex. App.—San
Antonio 2010, pet. ref’d) (citing Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim.
App. 1990) (op. on reh’g)).
On appeal, Rodriguez contends that the complained-of evidence is “inherently
prejudicial, confusing[,] and misleading” and that “the State failed to satisfy its burden
that the extraneous offense was relevant to some issue other than the character of the
defendant generally.” The State responds that the jury is entitled to know all relevant
surrounding facts and circumstances of the charged offense and that the complained-of
evidence provides context.
In arguing that the extraneous-offense evidence is admissible, the State cites
Wyatt v. State, which states the following:
Rodriguez v. State Page 5
Texas Rule of Criminal Evidence 404(b) states that evidence of
other crimes, wrongs, or acts is not admissible to prove the character of a
person to show action in conformity therewith. But the ‘other crime,
wrong, or act’ may have relevance ‘apart from character conformity; that
it tends to establish some elemental fact, such as identity or intent; that it
tends to establish some evidentiary fact, such as motive, opportunity[,] or
preparation, leading inferentially to an elemental fact; or that it rebuts a
defensive theory by showing, e.g., absence of mistake or accident.’
Montgomery v. State, 810 S.W.2d 372, 388-89 (Tex. Crim. App. 1990) (op. on
reh’g). Additionally, same transaction contextual evidence may be
admissible where ‘several crimes are intermixed, or blended with one
another, or connected so that they form an indivisible criminal transaction,
and full proof by testimony . . . of any one of them cannot be given
without showing the others.’ Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim.
App. 1993). In fact, this Court has held that ‘it has long been the rule in
this State that the jury is entitled to know all relevant surrounding facts
and circumstances of the charged offense; an offense is not tried in a
vacuum.’ Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986).
Under Rule 404(b), however, same transaction contextual evidence
is admissible ‘only to the extent that it is necessary to the jury’s
understanding of the offense.’ Pondexter v. State, 942 S.W.2d 577, 584 (Tex.
Crim. App. 1996) (quoting England v. State, 887 S.W.2d 902, 915 (Tex. Crim.
App. 1994)). It is admissible ‘only when the offense would make little or
no sense without also bringing in the same transaction evidence.’ Id.
23 S.W.3d 18, 25 (Tex. Crim. App. 2000). And, in a later case involving a similar issue
about the admission of extraneous-offense evidence, the Texas Court of Criminal
Appeals noted that “[t]his evidence is considered ‘res gestae,’ under the reasoning that
events do not occur in a vacuum, and the jury has a right to hear what occurred
immediately prior to and subsequent to the commission of that act so that it may
realistically evaluate the evidence.”2 Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim.
App. 2000).
2 In Wesbrook, the defendant was charged by indictment with capital murder, and the Wesbrook
court noted that: “Evidence of the three additional killings from that evening was same transaction
Rodriguez v. State Page 6
As stated earlier, E.T. testified that Rodriguez sexually assaulted her while the
family was parked at a rest area located in Navarro County. Approximately ten days
later, E.T. made an outcry to her priest, who told her that she should tell her parents.
E.T. subsequently told her parents about the incident, and E.T.’s parents confronted
Rodriguez’s wife a day later. And, later that evening, Rodriguez broke into E.T.’s
house, confronted E.T.’s mother at gunpoint, and demanded that he be allowed to
interrogate E.T. about the incident. Additionally, at this time, Rodriguez left behind a
letter in which he admitted to touching E.T. but denied raping her.
Based on our review of the record, the complained-of extraneous-offense
evidence would constitute same transaction contextual evidence and, thus, was
relevant. See Wesbrook, 29 S.W.3d at 115; Wyatt, 23 S.W.3d at 25. This is true because the
evidence pertained to the sexual assault and E.T.’s outcry. See Brown v. State, 657
S.W.2d 117, 119 (Tex. Crim. App. 1983) (holding that testimony that appellant
threatened to kill the sexual-assault victim’s family was admissible to show reason for
delayed outcry); Yates, 941 S.W.2d at 366-67 (concluding that evidence probative of
defendant’s intent and consciousness of guilt was admissible as same-transaction
evidence); see also Gamble v. State, No. 2-07-174-CR, 2009 Tex. App. LEXIS 2134, at *9
(Tex. App.—Fort Worth Mar. 27, 2009, pet. ref’d) (mem. op., not designated for
publication) (“It is also relevant to show the reason for a complainant’s acquiescence to
sexual assault and a defendant’s dominance over the complainant.”). The record
contextual evidence and, as such, admissible without a limiting instruction.” Wesbrook v. State, 29 S.W.3d
103, 114-15 (Tex. Crim. App. 2000).
Rodriguez v. State Page 7
reflects that the confrontation with E.T.’s mother was related to the sexual assault. See
Rogers, 853 S.W.2d at 33; Moreno, 721 S.W.2d at 301. In fact, the evidence shows that
Rodriguez confronted E.T.’s mother because he wanted to interrogate E.T. about the
incident for unknown reasons. See Yates, 941 S.W.2d at 366-67. As such, we conclude
that the evidence was relevant to show the jury how Rodriguez reacted violently to
E.T.’s outcry, which also arguably demonstrated Rodriguez’s consciousness of guilt. See
TEX. R. EVID. 401; see also Wesbrook, 29 S.W.3d at 115; Wyatt, 23 S.W.3d at 25; Yates, 941
S.W.2d at 366-67.
Furthermore, Rodriguez does not complain about the admission of the letter he
left at E.T.’s house. We further conclude that the complained-of extraneous-offense
evidence was necessary to show how Rodriguez gained access to E.T.’s house to leave
the letter. Without this evidence, the jury could have been confused as to how the
letter—wherein Rodriguez admitted to touching E.T.—was left inside E.T.’s house on
the night of the break-in. See Wyatt, 23 S.W.3d at 25; see also Pondexter, 942 S.W.2d at
584. Therefore, based on the foregoing, we cannot say that the trial court abused its
discretion in overruling Rodriguez’s relevancy objection to the extraneous-offense
evidence. See De La Paz, 279 S.W.3d at 343; Prible, 175 S.W.3d at 731; Brown, 6 S.W.3d at
578. Accordingly, we overrule Rodriguez’s first issue.3
3 The State asserts that the extraneous-offense evidence was also admissible under article 38.37 of
the Texas Code of Criminal Procedure, which applies to the prosecution of an offense against a child
under seventeen years of age and provides that:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes,
wrongs, or acts committed by the defendant against the child who is the victim of the
alleged offense shall be admitted for its bearing on relevant matters, including:
Rodriguez v. State Page 8
B. Texas Rule of Evidence 403
In his second issue, Rodriguez asserts that the admission of the complained-of
extraneous-offense evidence violated Texas Rule of Evidence 403 because the probative
value of the evidence was substantially outweighed by “its danger of causing unfair
prejudice against appellant or confusion of the issue.” See TEX. R. EVID. 403.
Texas Rule of Evidence 403 states: “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence.” Id. When a Rule 403 objection
is made and then overruled, the trial court necessarily conducts a balancing test by
considering and overruling the objection. Parmer v. State, 38 S.W.3d 661, 670 (Tex.
App.—Austin 2000, pet. ref’d); Howland v. State, 966 S.W.2d 98, 103 (Tex. App.—
Houston [1st Dist.] 1998), aff’d, 990 S.W.2d 274 (Tex. Crim. App. 1999) (citing Yates v.
State, 941 S.W.2d 357, 367 (Tex. App.—Waco 1997, pet. ref’d)). In doing so, the trial
court must balance (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
(1) the state of mind of the defendant and the child.
(2) the previous and subsequent relationship between the defendant and the child.
TEX. CODE CRIM. PROC. ANN. art. 38.37, §§ 1-2 (West Supp. 2012). However, because we have concluded
that the evidence was relevant as same transaction contextual evidence, we need not address whether
evidence that Rodriguez broke into E.T.’s house, confronted her mother at gunpoint, and demanded to
interrogate E.T. falls within the purview of article 38.37.
Rodriguez v. State Page 9
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 repeat evidence already admitted. Casey v.
State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007). Rule 403 favors admissibility, and
“the presumption is that relevant evidence will be more probative than prejudicial.”
Montgomery, 810 S.W.2d at 392; see Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App.
2007). Moreover, “[i]n prosecutions for sex offenses against children, ‘extraneous acts
between the complainant and the defendant are usually more probative than
prejudicial.’” Brown, 6 S.W.3d at 579 (quoting Boutwell v. State, 719 S.W.2d 164, 178 (Tex.
Crim. App. 1985)).
This Court stated in Yates that: “While same-transaction evidence does not fall
within the ambit of Rule 404(b), the court must nevertheless test its admissibility under
Rule 403 when called upon to do so. . . . Rarely will the potential prejudice of such
evidence render it inadmissible, however.” 941 S.W.2d at 367. We have already
concluded that the complained-of extraneous-offense evidence constitutes same
transaction contextual evidence and, thus, is relevant. See Wesbrook, 29 S.W.3d at 115;
Wyatt, 23 S.W.3d at 25. Furthermore, this evidence, when combined with other
surrounding circumstances, including the admissions contained in the letter, made a
fact of consequence—Rodriguez’s touching of E.T.’s genitals—more probable.
Because same-transaction evidence is rarely excluded on account of unfair
prejudice, and because we believe the trial court’s determination was “within the zone
Rodriguez v. State Page 10
of reasonable disagreement,” we cannot conclude that the trial court abused its
discretion in admitting the complained-of extraneous-offense evidence. See Boutwell,
719 S.W.2d at 178; Brown, 6 S.W.3d at 579; Yates, 941 S.W.2d at 367; see also TEX. R. EVID.
403; Casey, 215 S.W.3d at 880. We overrule Rodriguez’s second issue.
IV. CONCLUSION
Having overruled both of Rodriguez’s issues, we affirm the judgment of the trial
court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed January 10, 2013
[CR25]
Rodriguez v. State Page 11