Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00859-CR
Robin Marie RODRIGUEZ,
Appellant
v.
The State of
The STATE of Texas,
Appellee
From the County Court at Law No. 7, Bexar County, Texas
Trial Court No. 377921
Honorable Genie Wright, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: December 11, 2013
AFFIRMED
A jury found appellant Robin Marie Rodriguez guilty of assault causing bodily injury. The
trial court sentenced Rodriguez to confinement in jail for six months, suspended, and assessed a
$1,200.00 fine. On appeal, Rodriguez presents one issue, complaining the trial court abused its
discretion by excluding “communicated character” evidence during the guilt-innocence phase of
the trial. We affirm the trial court’s judgment.
04-12-00859-CR
BACKGROUND
Rodriguez and the complainant, Eric Mireles, had an on-again-off-again relationship; the
two had a child together in July 2010. Their relationship ended in November 2010. On June 19,
2011, Father’s Day, Mireles had possession of the former couple’s child and was celebrating at his
father’s house.
That afternoon, Rodriguez and a friend drove to the home to pick up the child. When
Rodriguez went into the house to get the child, she noticed Mireles’s new girlfriend was there and
that Mireles had “hickies” on his neck. Rodriguez and Mireles argued. Although exactly what
occurred next is disputed, it is undisputed that Rodriguez slapped Mireles across the left side of
his face. Thereafter, Rodriguez left with the child. Both Rodriguez and Mireles ultimately
contacted police about the incident.
In July 2012, Rodriguez was arrested and charged with the offense of assault causing bodily
injury. The charge was based on Mireles’s claim that Rodriguez slapped him across the face with
her hand.
At trial, Rodriguez claimed she slapped Mireles in self-defense. She attempted to testify
about prior specific instances of violence by Mireles. She sought to introduce this evidence to
show the reasonableness of her state of mind for her claim of self-defense. The State objected,
and the trial court excluded the evidence as impermissible character evidence. The jury
subsequently found Rodriguez guilty, and the trial court sentenced her to six months confinement
in Bexar County Jail, suspended and probated for one year, and assessed a $1,200.00 fine.
Rodriguez perfected this appeal.
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ANALYSIS
In her sole appellate issue, Rodriguez contends the trial court abused its discretion by
excluding the portion of her testimony regarding Mireles’s prior specific instances of violence
against her. Rodriguez wished to use the evidence to support her claim of self-defense.
This court reviews the trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010), cert.
denied, 131 S. Ct. 2966 (2011). The trial court abuses its discretion when its decision lies outside
the zone of reasonable disagreement. Id.
Pursuant to the Texas Penal Code, “[a] person is justified in using force against another
when and to the degree the actor reasonably believes the force is immediately necessary to protect
the actor against the other’s use or attempted use of unlawful force.” TEX. PENAL CODE ANN
§ 9.31(a) (West 2011). The Texas Court of Criminal Appeals has held a defendant in an assault
case may introduce “communicated character” evidence concerning the victim’s character for
violence or aggression. Ex parte Miller, 330 S.W.3d 610, 618 (Tex. Crim. App. 2009).
Communicated character evidence allows the defendant to show the reasonableness of the
defendant’s claim of apprehension of danger from the victim by offering reputation or opinion
testimony or evidence of specific prior acts of violence by the victim. Id. (emphasis added). This
type of evidence does not violate Texas Rule of Evidence 404(a)(2) “because Rule 404 bars
character evidence only when offered to prove conduct in conformity, i.e., that the victim acted in
conformity with his violent character.” Id. at 618–19; see also TEX. R. EVID. 404(a)(2) (stating
evidence of pertinent character trait of victim of crime offered by accused is not admissible for the
purpose of proving action in conformity therewith on particular occasion). Communicated
character evidence proves the defendant’s own self-defensive state of mind and the reasonableness
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of that state of mind. Id. at 619. Therefore, communicated character evidence is admissible to
support a claim of self-defense.
Here, Rodriguez attempted to introduce evidence of Mireles’s alleged history of violence
towards her. In her offer of proof, Rodriguez testified Mireles: (1) had previously placed her in a
chokehold; (2) pushed her numerous times during arguments; (3) grabbed her numerous times;
and (4) once attempted to drive away after rolling up his car window, trapping her hand inside.
We agree with Rodriguez that if the evidence had been admitted, it would have provided some
evidence that Rodriguez reasonably believed she needed to defend herself when Mireles allegedly
grabbed her arm during their Father’s Day dispute. See id.
The record reflects counsel for Rodriguez specifically argued the admissibility of this
evidence under the Miller analysis of communicated character evidence. 1 Nevertheless, the trial
court refused to permit the introduction of the evidence, relying on Rule 404(a)(2) as support for
its ruling. Given the court’s holding in Miller that admission of communicated character evidence
does not violate Rule 404(a)(2), we hold the trial court’s decision was outside the zone of
reasonable disagreement. See Martinez, 327 S.W.3d at 736 (emphasis added). Accordingly, we
hold the trial court abused its discretion by excluding Rodriguez’s testimony about the prior
specific acts of violence against her by Mireles.
Although the trial court erred in excluding Rodriguez’s testimony, reversible error may not
be predicated upon a ruling excluding evidence unless a substantial right of the party is affected.
De La O v. State, 127 S.W.3d 799, 804 (Tex. App.—San Antonio 2003, pet. ref’d) (citing Motilla
v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002)); see also TEX. R. APP. P. 44.2(b); TEX. R.
EVID. 103(a). A defendant’s substantial rights are affected when the error has a substantial and
1
Counsel read the relevant portions of Miller into the record in their entirety.
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injurious effect or influence in determining the jury’s verdict. Walters v. State, 247 S.W.3d 204,
218 (Tex. Crim. App. 2007) (quoting Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001)).
It is the court’s responsibility to decide whether it is likely the error had some adverse effect
on the proceedings. Id. at 219 (quoting Johnson, 43 S.W.3d at 4). In making this determination,
we “consider everything in the record, including any testimony or physical evidence admitted for
the jury’s consideration, the nature of the evidence supporting the verdict, and the character of the
alleged error and how it might be considered in connection with other evidence in the case.” De
La O, 127 S.W.3d at 804. Further, the presence of overwhelming evidence supporting the
conviction can be a factor in our evaluation of harmless error under Rule 44.2(b). Motilla, 78
S.W.3d at 357.
The evidence at trial was largely in the form of testimony. The testimony provided two
different versions of events. In one version, as told by Mireles and his family, Rodriguez slapped
him during an argument inside Mireles’s parents’ home. In the other version, as told by Rodriguez
and her friend, Rodriguez slapped Mireles in front of the home when he allegedly grabbed her arm.
There are two commonalities with the opposing testimonies: (1) Rodriguez slapped Mireles; and
(2) Rodriguez was very angry at Mireles when the events transpired. The nature of the testimony
supports the conclusion that Rodriguez slapped Mireles not out of fear of bodily harm, but rather
out of anger.
Rodriguez’s own testimony provides the strongest evidence that she slapped Mireles out
of anger, not in self-defense. Rodriguez testified Mireles was cheating on her during her pregnancy
and it made her very angry. Then, after the birth of their child and the couple’s break-up, Mireles
“would tell me that we would be together again, that we would work things out . . . [b]ut he was
still doing everything like he was doing. Lying constantly, just to keep me around. Just to keep
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me there because he said that it would hurt him too much to see me with anyone else.” Rodriguez
testified that on the day of the assault:
I walk in [to Mireles’s parents’ house]. I see him, his step-mom, his
dad, his brother, and the girl, my son, and I get really upset. So, I
get angry. I start telling him loudly, you know, why did you lie to
me? Why couldn’t you just be honest with me? It angered me even
more when I saw all the hickeys on his neck because his neck was
covered with them.
Rodriguez admitted yelling at Mireles because she was mad at him. This led to an argument where
Rodriguez and Mireles “were arguing about the girl and the hickeys.” It was during this argument
that Rodriguez slapped Mireles.
The foregoing evidence supports the jury’s decision to find Rodriguez intentionally slapped
Mireles out of anger, not in self-defensive fear. However, despite the trial court’s exclusion of
prior instances of specific violence by Mireles, Rodriguez was able to introduce evidence to
suggest the assault was not the result of anger, but rather an act of self-defense.
The record reflects Rodriguez was unable to introduce specific evidence that Mireles had
been violent toward her in the past. Rodriguez was permitted to testify: (1) that behind closed
doors, Mireles had physically touched her; (2) she was scared when Mireles grabbed her arm
because it was not the first time he had done so; and (3) she slapped Mireles because she was
scared. Additionally, the jury heard from three different witnesses about the substantial size
disparity between Rodriquez and Mireles. 2 Clearly, counsel wanted to emphasize Mireles’s ability
to intimidate and overpower Rodriguez. Moreover, during the State’s cross examination of
Rodriguez, it seemingly acknowledged Mireles’s history of violence towards Rodriguez when it
2
Depending on the testimony, Mireles was 6’1”–6’3” and between 220–320 pounds at the time of the incident.
Rodriguez testified she was 5’2” and 130 pounds at the time of the incident.
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asked her whether her friend, a witness for the defense, “doesn’t appreciate that he’s hurt you in
the past, right?” (emphasis added).
We therefore hold Rodriguez was permitted to introduce sufficient evidence to enable the
jury to determine the reasonableness of Rodriguez’s self-defensive state of mind at the time of the
altercation. Accordingly, based on this and the evidence in support of the jury’s verdict, we hold
the trial court’s error did not affect Rodriguez’s substantial rights. Viewing the record as a whole,
we hold that the decision to exclude Rodriguez’s testimony about Mireles’s past specific acts of
violence against her did not have a substantial and injurious effect or influence on the jury’s
verdict. See Walters, 247 S.W.3d at 218.
CONCLUSION
Because the trial court’s error was not harmful, we overrule Rodriguez’s issue and affirm
the trial court’s judgment.
Marialyn Barnard, Justice
Do Not Publish
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