Santos Victor Ruiz, Jr. v. State

IN THE
TENTH COURT OF APPEALS

No. 10-16-00247-CR

SANTOS VICTOR RUIZ, JR.,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 361st District Court
Brazos County, Texas
Trial Court No. 15-00539-CRF-361

MEMORANDUM OPINION

In eight issues, appellant, Santos Victor Ruiz Jr., challenges his conviction for

continuous sexual abuse of a child. See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2017).

Because we overrule all of Ruiz’s issues on appeal, we affirm.1

1 As this is a memorandum opinion and the parties are familiar with the facts, we only recite those
facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.
 I. RUIZ’S MOTION FOR CONTINUANCE

In his first issue, Ruiz contends that the trial court abused its discretion by denying

his motion for continuance “sought due to the State belatedly providing a wealth of

information concerning the charged offense and various extraneous offenses allegedly

committed by Ruiz.” We disagree.

Where denial of a continuance has resulted in representation by counsel
who was not prepared, we have not hesitated to declare an abuse of
discretion. Nevertheless, the granting or denial of a motion for continuance
is within the sound discretion of the trial court. To find an abuse of
discretion in refusing to grant a motion for continuance, there must be a
showing that the defendant was prejudiced by his counsel’s inadequate
preparation time.

Appellant’s counsel contends that the denial of the continuance
rendered him unable to prepare an adequate defense; however, he does not
argue, much less establish, any specific prejudice to his cause arising from
the trial court’s failure to continue the trial. In Hernandez[,] appointed
counsel had less time than appellant to prepare for trial, but we,
nevertheless, held:

Although this is a relatively short time for preparation in a [capital
murder trial], no specific, serious matter has been raised by the
appellant and the record does not show otherwise that the
appellant’s defense was prejudiced by counsel not having more time
to prepare for trial.

. . . . Like Hernandez, appellant does not allege any specific prejudice to his
defense. He does not allege that he was unfairly surprised at trial or unable
to effectively cross-examine any of the State’s witnesses. The bare assertion
that counsel did not have adequate time to interview the State’s potential
witnesses does not alone establish prejudice. The assertion that counsel did
not have time to adequately investigate medical records for potential
mitigating evidence without any showing of harm likewise fails to establish
an abuse of discretion. Absent a showing of prejudice, we can[]not hold

Ruiz v. State Page 2
 that the trial court abused its discretion in overruling appellant’s motion for
continuance.

Heiselbetz v. State, 906 S.W.2d 500, 511-12 (Tex. Crim. App. 1995) (internal citations

omitted).

The record from the July 7, 2016 hearing on Ruiz’s motion for continuance is

contained in the record. At this hearing, Ruiz argued that the basis for his motion for

continuance was that there was:

a significant amount of discovery that has been provided to me by the State
. . . . And [the prosecutor] and I went through some of that with Judge Gore
on the 30th when we had our pretrial hearing. At that time[,] I announced
ready subject to reviewing all the information that was turned over to me
there.

Ruiz admitted that he was given oral notice, as early as June 24th or 25th, that there was

a new extraneous offense involving the possession of child pornography on a laptop

turned over to the Department of Homeland Security. He also acknowledged that he had

received the report prepared by the computer expert and requested the appointment of

an investigator to help him review the computer.

In addition to the foregoing, Ruiz also noted that the State interviewed witnesses

from Las Cruces, New Mexico, and returned with two different interviews of Ruiz from

2007 about an incident that was dismissed in Deming, New Mexico. Ruiz received

additional interviews of victims by Deming Police, an article 38.22 statement and phone

calls with parents of the alleged victims, including jail-phone calls—all of which Ruiz’s

counsel had begun listening to at the time of the July 7, 2016 hearing.
Ruiz v. State Page 3
 The prosecutor responded that he had not been aware until recently that Ruiz was

still talking to Y.R., the mother of one of Ruiz’s other victims, and he felt the jail calls

could contain Brady material. Moreover, the prosecutor stated that he did not intend to

use any of the jail-phone calls as evidence or trial exhibits. Regarding statements Ruiz

made to Bryan Police Department Detective Chris Loup, the prosecutor asserted that

none of the Bryan Police reports noted the existence of any statements; that the statements

were immediately turned over to Ruiz upon discovery; and that the State did not intend

to use the statements in its case-in-chief. The mother of R.P., the child victim in this case,

informed the prosecution about the child pornography on the laptop, and the

Department of Homeland Security took custody of the laptop on June 22, 2016. After

conducting an analysis on it, the Department discovered seven images and made a report,

which was provided to Ruiz on June 28, 2016. The next day, Ruiz was informed that the

laptop and disk with images were in the State’s possession and were available for

discovery.

The trial court denied Ruiz’s motion for continuance, but prohibited the State from

using any of the evidence that it stated it did not intend to use during guilt-innocence.

The trial court did note that the State could use the prohibited evidence only in the context

of impeachment. However, the trial court did not prohibit the usage of the child-

pornography images.

Ruiz v. State Page 4
 Neither at trial nor on appeal did Ruiz argue that he was unfairly surprised or

unable to effectively cross-examine any of the State’s witnesses. On appeal, Ruiz argues

that he “was provided an inadequate opportunity to confer with his computer forensics

expert or investigate newly sprung extraneous offenses revealed on the eve of trial.” In

light of Heiselbetz, this is not enough to establish prejudice. See 906 S.W.2d at 511-12.

Furthermore, the record demonstrates that counsel effectively cross-examined Jeffrey

Chappell, the State’s computer-forensics expert. Moreover, Ruiz argued the following

during closing:

What proof was it that that pornography was viewed or possessed by
Santos Ruiz? Well, I can’t tell you who downloaded it, and I can’t tell you
particularly when it was actually seen. But this is where we got it from. We
got it from a lady here shortly before the trial whose daughter is an alleged
victim of this offense, and she comes screaming in with this computer, this
computer that could have had the hard drive in and out any number of
times, this computer that you don’t know who had access to, when. You
do know, and I will agree I don’t have any reason to disagree with the agent
that testified, that there are multiple e-mails, multiple pictures of my client
contained on that hard drive.

Does that mean he was in possession of each and every file of the
seven files of the 700,000 plus that are contained? There’s reasonable doubt.
That’s where I want you to start with and—because you can identify that
as reasonable doubt that he was in possession of it.

And interestingly, some of the evidence Ruiz complained about—namely, the jail-

phone calls, he used during the cross-examination of one of the State’s witnesses. 2 We

2 In particular, the record shows that Ruiz used the jail-phone calls he made with Y.R., the mother
of one of his children that he was accused of sexually abusing in New Mexico, to show that Y.R. did not
believe that he touched the child with the intent to sexually gratify himself. Additionally, during his cross-

Ruiz v. State Page 5
cannot conclude that the foregoing establishes that the trial court abused its discretion in

denying Ruiz’s motion for continuance. See id.; see also Renteria v. State, 206 S.W.3d 689,

699 (Tex. Crim. App. 2006) (noting that we review a trial court’s denial of a motion for

continuance for an abuse of discretion). We therefore overrule his first issue.

II. EXCLUSION OF EVIDENCE REGARDING A CHILD PROTECTIVE SERVICES
INVESTIGATION

In his second, third, and fourth issues, Ruiz argues that the trial court abused its

discretion by excluding evidence he sought to offer during the cross-examination of

school counselor Susan Fossler, teacher Jeri Jean Curran, and the complainant’s mother

showing a CPS investigation of the charged incident that was closed with a notation of

“unable to determine.”

We review a trial court’s decision to exclude evidence for an abuse of discretion.

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses its

discretion only if its decision is “so clearly wrong as to lie outside the zone within which

reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App.

2008). A trial court does not abuse its discretion if any evidence supports its decision. See

Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). We will uphold the trial

court’s evidentiary ruling if it was correct on any theory of law applicable to the case. See

De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

examination of Y.R., Ruiz highlighted that he had spoken with Y.R. about the incident on the telephone
over twenty times before trial.

Ruiz v. State Page 6
 While cross-examining each of the aforementioned witnesses, Ruiz sought to elicit

the results of a CPS investigation of this matter, which, according to Ruiz, resulted in an

“unable to determine” finding. Each time Ruiz attempted to do so, the State lodged

numerous objections, including hearsay objections. The trial court sustained the State’s

hearsay objections. Ruiz made bills of exceptions outside the presence of the jury for each

witness.

In a similar circumstance, the Dallas Court of Appeals noted the following:

At a hearing outside the presence of the jury, appellant offered the CPS
records showing that CPS had investigated allegations by KS of physical
abuse by appellant and “ruled out” physical abuse. He offered the records
as business records through Amanda Haines, a CPS master investigator
who closed the prior case but did not investigate the allegations.

...

One of the objections lodged by the State was that the records contained
hearsay within hearsay. We agree. Even when a party lays the proper
foundation for admission of a business record, if the business record
contains “information from a person who is outside the business and who
has no business duty to report or to report accurately, those statements are
not covered by the business records exception.” Garcia v. State, 126 S.W.3d
921, 926-27 (Tex. Crim. App. 2004). Instead, “[t]hose statements must
independently qualify for admission under their own hearsay exception[.]”
Id.

The CPS records appellant sought to introduce contained statements
from KS, KS’s brother, Mother, Grandmother, appellant, and other relatives
of KS. None of those is a CPS employee or had a business duty to report or
to report accurately. See id. Consequently, after the State objected to the
records as containing hearsay within hearsay, appellant’s burden was to
provide the trial court with an independent hearsay exception for each of
those statements he sought to admit into evidence. Id. Because appellant

Ruiz v. State Page 7
 did not do so, the trial court did not abuse its discretion by excluding the
records.

Gregg v. State, No. 05-16-00557-CR, 2017 Tex. App. LEXIS 4877, at **9-11 (Tex. App.—

Dallas May 26, 2017, pet. ref’d) (mem. op., not designated for publication).

Here, Ruiz did not attempt to admit evidence of the CPS investigation through the

person who did the actual investigation; rather, he sought to proffer this evidence

through witnesses that were not CPS employees and who did not have knowledge of the

investigation. In light of Gregg, we conclude that the trial court properly excluded this

evidence as hearsay. See id. at **9-11.

And to the extent that Ruiz suggests that the result of the investigation should

have been admitted under the rule of optional completeness, we note that the

aforementioned witnesses did not leave the jury with a false impression. None of them

were aware of the outcome of the CPS investigation. Rather, they merely testified how

the criminal investigation began. In such situations, the Court of Criminal Appeals has

stated the following:

Hearsay statements are generally not admissible unless the statement falls
within a recognized exception to the hearsay rule. Rule 107, the rule of
optional completeness, is one such rule. This rule is one of admissibility
and permits the introduction of otherwise inadmissible evidence when that
evidence is necessary to fully and fairly explain a matter “opened up” by
the adverse party. It is designed to reduce the possibility of the jury
receiving a false impression from hearing only a part of some act,
conversation, or writing. Rule 107 does not permit the introduction of other
similar, but inadmissible, evidence unless it is necessary to explain properly
admitted evidence. Further, the rule is not invoked by the mere reference
to a document, statement, or act. And it is limited by rule 403, which
Ruiz v. State Page 8
 permits a trial judge to exclude otherwise relevant evidence if its unfair
prejudicial effect or its likelihood of confusing the issues substantially
outweighs its probative value.

Walters v. State, 247 S.W.3d 204, 217-18 (Tex. Crim. App. 2007) (internal footnotes

omitted).

Because none of the aforementioned witnesses left the jury with a false impression,

but rather described how the criminal investigation began, we are not convinced that the

complained-of evidence was admissible under the rule of optional completeness,

especially considering none of these witnesses were independently aware of the outcome

of the CPS investigation. See id. Therefore, based on the foregoing, we cannot say that

the trial court abused its discretion by excluding the complained-of testimony. See

Martinez, 327 S.W.3d at 736. We overrule Ruiz’s second, third, and fourth issues.

III. ADMISSION OF EVIDENCE OF POSSESSION OF CHILD PORNOGRAPHY AND
EXTRANEOUS SEXUAL ASSAULT

In his fifth and sixth issues, Ruiz asserts that the trial court abused its discretion

by admitting evidence of possession of child pornography and an extraneous sexual

assault without first conducting a hearing outside the presence of the jury. Specifically,

Ruiz notes that his fifth issue concerns the admission of evidence of possession of child

pornography under Texas Rule of Evidence 404 and that his sixth issue concerns the

admission of evidence of an extraneous sexual assault under Texas Code of Criminal

Procedure 38.37. See TEX. R. EVID. 404; see also TEX. CODE CRIM. PROC. ANN. art. 38.37 (West

Supp. 2017).
Ruiz v. State Page 9
 After the complainant’s mother testified during the State’s case-in-chief, the trial

court conducted a hearing outside the presence of the jury concerning the State’s request

to admit an extraneous offense—that Ruiz’s laptop computer contained images of child

pornography. At this time, the State asserted the following: “Your Honor, prior to trial,

a search was done on—pursuant to a search warrant, on the defendant’s computer; and

that search discovered several images of child porn, specifically child porn relating to

young girls, girls in the approximate age of [R.P.].” The prosecutor believed that defense

counsel, through his questioning of the complainant’s mother about a disagreement she

had with Ruiz regarding an abortion, raised the defensive theory of fabrication. In other

words, the defense counsel alleged that R.P. was lying about the incident at her mother’s

request to get Ruiz in trouble regarding the disagreement over the abortion. The

prosecutor then cited several cases authorizing the admission of child-pornography

evidence to show intent and to rebut fabrication theories in child-sex cases. In response,

defense counsel acknowledged that:

Judge, I agree we’ve raised a defensive theory of fabrication. And if we’re
going to get into this extraneous offense, I anticipate there being a hotly
contested hearing outside the presence of the jury as to the admissibility,
chain of custody of these items, and the process by which they were
obtained. We’re trying a child porn case in the middle of this case, if the
Court allows it. I do believe that that is more prejudicial than it is probative
as well.

The trial court agreed with defense counsel and disallowed the admission of the child-

pornography evidence at that point in the trial.

Ruiz v. State Page 10
 Thereafter, during his case-in-chief, Ruiz denied ever touching R.P. and stated that

he only went into R.P.’s room and turned off the closet light. He denied dropping his

pants to around his knees. Before the State began its cross-examination of Ruiz, the trial

court conducted a second hearing outside the presence of the jury. During this hearing,

the prosecutor argued:

Two things, Judge. By testifying in this case[,] I think the defendant has
further opened the door to the child porn evidence. He has got on the stand.
He has completely denied this offense, every element of this offense. That
opened the door on many levels to evidence of the child porn that was
found on his computer.

My intention is to ask him about those things. The case law is very
clear on this. I’ve provided the Court with Bass and Newton. There’s
another case, De La Paz, that is a well-established case that deals with the
doctrine of chances that when the defense is putting forth a fabrication of
the defense—as the defense has already stipulated in this case that they
have—then we get to rebut that with extraneous conduct. The child porn
certainly falls into that category.

(Emphasis added).

In response to the prosecutor’s arguments, defense counsel solely objected to the

child-pornography evidence under article 38.37 of the Code of Criminal Procedure.

However, the above exchanges indicate that, contrary to Ruiz’s assertion, the trial court

conducted two hearings outside the presence of the jury on the child-pornography

evidence. Furthermore, during the second hearing, Ruiz objected to the complained-of

evidence under article 38.37 of the Code of Criminal Procedure, not Texas Rule of

Ruiz v. State Page 11
Evidence 404. Ultimately, the trial court allowed the State to use the child-pornography

evidence in cross-examining Ruiz.

To preserve error for appellate review, a complaining party must make a timely

and specific objection. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349

(Tex. Crim. App. 2002). Texas courts have held that points of error on appeal must

correspond or comport with objections and arguments made at trial. Dixon v. State, 2

S.W.3d 263, 273 (Tex. Crim. App. 1998); see Wright v. State, 154 S.W.3d 235, 241 (Tex.

App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not comport with the

issue raised on appeal, the appellant has preserved nothing for review.” Wright, 154

S.W.3d at 241; see Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding

that an issue was not preserved for appellate review because appellant’s trial objection

did not comport with the issue he raised on appeal); Ibarra v. State, 11 S.W.3d 189, 197

(Tex. Crim. App. 1999) (same). Because Ruiz’s Rule 404 complaint on appeal does not

comport with his article 38.37 objection made in the trial court, we cannot say that he has

preserved this complaint for appellate review. See TEX. R. APP. P. 33.1(a)(1); see also

Resendiz, 112 S.W.3d at 547; Ibarra, 11 S.W.3d at 197; Dixon, 2 S.W.3d at 273; Wright, 154

S.W.3d at 241.

Regarding the evidence of an extraneous sexual assault that Ruiz purportedly

committed against his son, T.R., the trial court, once again, conducted a hearing outside

Ruiz v. State Page 12
the presence of the jury before the State began to cross-examine Ruiz. In particular, the

following exchange occurred addressing this evidence:

[Prosecutor]: The second thing is there are several other victims, but
one in particular that I intend to ask this defendant
about is his son[,] [T.R.]. Once again[,] that would be
on several grounds, 38.37, which the defense has had
notice of defendant’s sexual assault of his son—

[Defense counsel]: Stipulated.

[Prosecutor]: —[T.R.] for a better part of a year. He also testified on
direct about how, you know, maybe he wasn’t the best
father to [T.R.] because he hasn’t always been there.
There’s a little bit more to that story. He also sexually
assaulted [T.R.]. And I think in light of his testimony
on that, we’re entitled to go into that as well, Judge.

THE COURT: Do you want to comment, sir?

[Defense counsel]: If we’re going to do that, we’re going to have to have a
hearing. The Judge is going to have to make a
determination that that particular evidence could be
found beyond a reasonable doubt under 38.37.

[Prosecutor]: I respectfully disagree because at this point we’re
entitled to introduce that to rebut a defensive theory
which the defendant has created, also to impeach
testimony that the defendant has testified on direct.
No notice is required for that, no hearing is required
for that, and I think we’re entitled to go into it at this
point.

...

[Defense counsel]: I’m not even going to make a 403 objection on that. I’ll
make the confrontation—right to confront an accuser
under the Federal Constitution. I’ll make an objection
as to due course, due process of law under the Texas
Ruiz v. State Page 13
 and Federal Constitutions that this testimony is
allowed.

The trial court overruled Ruiz’s objections and allowed the State to use this evidence in

their cross-examination of Ruiz.

A witness may be cross-examined on any relevant matter, including
credibility. TEX. R. EVID. 611(b). Evidence is relevant if “it has any tendency
to make a fact more or less probable than it would be without the evidence”
and “the fact is of consequence in determining the action.” TEX. R. EVID.
401. Thus, a witness may be cross-examined on an issue that is probative
of his credibility. See Perry v. State, 236 S.W.3d 859, 867 (Tex. App.—
Texarkana 2007, no pet.). Additionally, a party has the right to pursue all
avenues of cross-examination reasonably calculated to expose bias, motive,
or interest for the witness to testify; therefore, the scope of appropriate
cross-examination is necessarily broad. Carroll v. State, 916 S.W.2d 494, 497
(Tex. Crim. App. 1996).

...

Rule 404(b) of the Texas Rules of Evidence provides that “[e]vidence of a
crime, wrong, or other act is 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.” TEX. R. EVID. 404(b)(1). Rule 404(b)(2) provides,
however, that such evidence “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)(2).

In Daggett v. State, the Court of Criminal Appeals shed light on the
inadmissibility of extraneous offense evidence subject to Rule 404(b). 187
S.W.3d 444, 453-54 (Tex. Crim. App. 2005). Specifically, the court addressed
the situation of how and when Rule 404(b) applies when a defendant puts
his character at issue:

When a witness makes a broad statement of good conduct or
character on a collateral issue, the opposing party may cross-
examine the witness with specific instances rebutting that false
impression, but generally may not offer extrinsic evidence to prove
the impeachment acts. Where, as here, the defendant’s statement of
Ruiz v. State Page 14
 good conduct is directly relevant to the offense charged . . . the
opponent may both cross-examine the defendant and offer extrinsic
evidence rebutting the statement. This is not impeachment on a
collateral matter. The statement of good conduct goes to the “heart”
of the matter.

Id. at 453 n.24.

Atnipp v. State, 517 S.W.3d 379, 390-91 (Tex. App.—Eastland 2017, pet. ref’d); see, e.g.

Sanchez v. State, No. 01-16-00525-CR, 2017 Tex. App. LEXIS 10798, at **9-11 (Tex. App.—

Houston [1st Dist.] Nov. 16, 2017, no pet.) (mem. op., not designated for publication)

(same).

As noted earlier, Ruiz stated, during the State’s case-in-chief, that “we’ve raised a

defensive theory of fabrication.” Thereafter, Ruiz testified that he had never touched any

of his children. This testimony, as well as his characterization of his relationship with

T.R., opened the door to the admission of the extraneous-offense evidence. See Daggett,

187 S.W.3d at 453 n.24 (“Where, as here, the defendant’s statement of good conduct is

directly relevant to the offense charged—i.e., ‘I would never have sexual relations with a

minor’—the opponent may both cross-examine the defendant and offer extrinsic

evidence rebutting the statement. This is not impeachment on a collateral matter. The

statement of good conduct goes to the ‘heart’ of the matter.” (internal citation omitted));

see also Sanchez, 2017 Tex. App. LEXIS 10798, at **10-11 (concluding that the trial court did

not abuse its discretion by allowing the State to introduce evidence of Sanchez’s

disciplinary record after Sanchez opened the door by voluntarily “paint[ing] the picture

Ruiz v. State Page 15
of . . . having a spotless disciplinary record during his teaching career. He denied having

any inappropriate contact with the female students and suggested that the Aldine school

officials had fabricated the allegations against him).

Given the above, we cannot say that the trial court abused its discretion by

admitting extraneous-offense evidence pertaining to Ruiz’s sexual assault of his son, T.R.,

during the State’s cross-examination of Ruiz. And to the extent that Ruiz complains that

the trial court committed error by failing to have an article 38.37 hearing to determine if

the State could prove the extraneous offense beyond a reasonable doubt, we note that any

error associated with failing to conduct an article 38.37 hearing on this evidence is

harmless because the jury in this case was instructed to consider the complained-of

evidence only if the State had proved them beyond a reasonable doubt, and because Ruiz

has not pointed to evidence demonstrating that the jury failed to follow the charge

instructions. See, e.g., Asberry v. State, No. 10-08-00237-CR, 2009 Tex. App. LEXIS 8512, at

**20-21 (Tex. App.—Waco Nov. 4, 2009), aff’d, No. PD-0257-10, 2011 Tex. Crim. App.

Unpub. LEXIS 101 (Tex. Crim. App. Feb. 16, 2011) (“Additionally, the jury was instructed

in the charge that they were only to consider any extraneous offenses if the State had

proved them beyond a reasonable doubt. On appeal, we generally presume the jury

followed the trial court’s instructions as presented in the charge. To rebut this

presumption, Jones is required to point to evidence the jury failed to do so. Asberry has

Ruiz v. State Page 16
made no such showing. We overrule issue five.”). Accordingly, we overrule Ruiz’s fifth

and sixth issues.

IV. ADMISSION OF EVIDENCE FROM A COMPUTER FORENSICS EXPERT

In his seventh issue, Ruiz complains that the trial court abused its discretion by

failing to hold a hearing outside the presence of the jury to determine the qualifications

of Chappell, the State’s computer-forensics expert called during the rebuttal of Ruiz’s

defensive theory. As such, Ruiz asserts that Chappell’s testimony and the evidence

documenting the child pornography on Ruiz’s computer should have been excluded. We

disagree.

The record reflects that Ruiz requested a hearing to qualify Chappell immediately

before the State was to cross-examine him. The trial court overruled Ruiz’s request and

allowed the State to “use these issues in cross-examination.” Later, after Ruiz rested his

case-in-chief, the State called Chappell to testify in rebuttal. Before he was allowed to

testify, the trial court provided a limiting instruction to the jury regarding the

consideration of extraneous-offense evidence. At this time, Ruiz did not request a

hearing to determine Chappell’s qualifications, nor did Ruiz object to Chappell testifying

at this time. Because Ruiz did not renew his request for a hearing or lodge an objection

to Chappell’s testimony at the time the State called Chappell to testify, we conclude that

any complaint on appeal about Chappell’s qualifications is waived. See TEX. R. APP. P.

33.1; Miller v. State, 343 S.W.3d 499, 502 n.2 (Tex. App.—Waco 2011, pet. ref’d); see also

Ruiz v. State Page 17
Castillo v. State, No. 10-12-00391-CR, 2014 Tex. App. LEXIS 4761, at *14 (Tex. App.—Waco

May 1, 2014, no pet.) (mem. op., not designated for publication).

Moreover, when the State proffered State’s Exhibit 7, five different photographs of

child pornography seized from Ruiz’s laptop, using Chappell as its sponsoring witness,

Ruiz stated that he had “no objection.” See Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim.

App. 1992) (concluding that appellant waived his complaint about the inadmissibility of

challenged evidence when he responded that he had “no objection” to the admission of

the complained-of evidence despite objecting to the same evidence pre-trial).

Furthermore, “‘[a]n error [if any] in the admission of evidence is cured when the same

evidence comes in elsewhere without objection.’” Lane v. State, 151 S.W.3d 188, 193 (Tex.

Crim. App. 2004) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)); see

Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“In addition, a party must object

each time the inadmissible evidence is offered or obtain a running objection.”). We

overrule Ruiz’s seventh issue.

V. THE RECORD ON APPEAL

In his eighth issue, Ruiz contends that this Court’s July 26, 2017 order erroneously

sanctioned the denial of a complete record on appeal of the June 30, 2016 hearing held in

magistrate court. As noted in our July 26, 2017 order, the crux of this complaint is as

follows:

Thereafter, on May 3, 2017, we received a letter from Court Reporter Wendy
L. Kirby about this matter. In her letter, Ms. Kirby expressed difficulty in
Ruiz v. State Page 18
 preparing, certifying, and filing the Reporter’s Record pertaining to the
June 30, 2016 hearing held before Magistrate Glynis Gore, a judge who has
since resigned her post due to medical issues. According to Ms. Kirby, an
electronic recording, rather than a stenographic recording, was made of the
hearing. See TEX. R. APP. P. 34.6(a)(2). The magistrate court informed Ms.
Kirby “that they are not responsible for transcribing those proceedings and
attached the electronic recording file to their email response.” Ms. Kirby
responded that she is “unable to transcribe and certify the proceedings”
because she was not present for the June 30, 2016 hearing.

Ruiz v. State, No. 10-16-00247-CR (Tex. App.—Waco July 26, 2017, order) (not designated

for publication).

In response to Ruiz’s request for a new trial due to the unavailability of the

certified transcript for the June 30, 2016 magistrate hearing, a majority of this Court noted

the following:

Absent a specific request by a party, the court has no duty to provide an
official court reporter for the proceedings. See TEX. GOV’T CODE ANN. §
52.046(a) (West 2013). However, in his response, Ruiz highlights Texas Rule
of Appellate Procedure 13.1, which provides, in relevant part, that “[t]he
official court reporter or court recorder must: (a) unless excused by
agreement of the parties, attend court sessions and make a full record of the
proceedings.” TEX. R. APP. P. 13.1. Essentially, Ruiz suggests that the duties
expressed in Texas Rule of Appellate Procedure 13.1 trump section
52.046(a) of the Government Code, thus creating a mandatory duty to create
a full record of the proceedings unless affirmatively waived.

In a similar circumstance, the Fourteenth Court of Appeals has stated
the following regarding an argument that Rule 13 trumps section 52.046(a):

The Texas Court of Criminal Appeals has held otherwise. See Davis
v. State, 345 S.W.3d 71, 77 (Tex. Crim. App. 2011) (noting that the
defendant did not request a court reporter under 52.046(a) and,
regardless, “even if Rule 13.1 does impose a preliminary burden on
the trial court to ensure the presence of a court reporter at all
proceedings, our case law also imposes an additional, independent
Ruiz v. State Page 19
 burden on the appealing party to make a record demonstrating that
error occurred in the trial court. This includes a burden to object
when the official court reporter is not present, as he is required to be
under Rule 13.1, in order to preserve any error that may occur for
appeal.” (emphasis in original)); Valle v. State, 109 S.W.3d 500, 508-09
(Tex. Crim. App. 2003) (holding that even under Rule 13.1 it was
incumbent upon the defendant to object if bench conferences were
not recorded in order to preserve error for appeal). Therefore,
because appellant did not request a court reporter or object to the
reporter’s failure to record the proceedings, any right to a record of
the punishment hearing was forfeited.

Satterfield v. State, 367 S.W.3d 868, 871 (Tex. App.—Houston [14th Dist.]
2012, pet. ref’d).

The Amarillo Court of Appeals has also noted the following
regarding the absence of a hearing transcript:

Second, we agree with the State that error preservation requirements
are fatal to appellant’s contention on direct appeal. Appellant’s
contention runs afoul of error preservation requirements on two
levels. First, on a procedural level, if appellant is correct that the
court reporter failed to record challenges for cause or other events
leading to the dismissal of a member of the venire, and if appellant
desired them to be recorded, it was for him to raise a complaint with
the trial court. See Valle v. State, 109 S.W.3d 500, 508-09 (Tex. Crim.
App. 2003) (holding party must object in trial court to preserve
appellate complaint about failure to record bench conferences); cf.
Davis v. State, 345 S.W.3d 71, 77 n.22 (Tex. Crim. App. 2011) (quoting
GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL
PRACTICE AND PROCEDURE § 43.302 (2d ed. 2001), at 576 (“a party
should not be permitted to ignore at the time a court reporter’s
dereliction of duty and later rely on that dereliction to challenge a
conviction”)). The appellate record contains no objection presented
to the trial court complaining of any matter related to the court
reporter or the taking of the record.

Ham v. State, 355 S.W.3d 819, 822-23 (Tex. App.—Amarillo 2011, pet. ref’d);
see Newman v. State, 331 S.W.3d 447, 450 (Tex. Crim. App. 2011) (“The record
appellant presented, however, contains no reporter’s record of any hearing
Ruiz v. State Page 20
 that may have occurred on June 26, 2008. This record also does not show
whether appellant objected in the event that the court reporter was not
present to transcribe the June 26, 2008 hearing. . . . We decide that appellant
has failed to present a record demonstrating that the trial court’s decision
should be overturned. With appellant having had a hearing, having lost in
the trial court on his speedy-trial claim, and then having presented no
record at all of a June 26, 2008 hearing on this claim, appellant should also
have lost on direct appeal.” (internal citations omitted)).

In addition to the foregoing, we note that section 54.309 of the
Government Code provides that: “At the request of a party in a felony case,
the court shall provide a court reporter to record the proceedings before the
magistrate.” TEX. GOV’T CODE ANN. § 54.309 (West 2013). Therefore, like
before, the failure to request a court reporter/recorder or object to a
reporter’s failure to record a hearing before a magistrate forfeits any right
to a record of that hearing.

Here, Ruiz states that he “timely requested a reporter’s record”;
however, other than his request for the reporter’s record on appeal, there is
no indication that he requested that a court reporter transcribe the June 30,
2016 hearing at the time the hearing was conducted.3 The record also does
not show that Ruiz objected to the purported failure of the trial court to
provide a court reporter to transcribe the June 30, 2016 hearing at the time
of the hearing. Therefore, given the above, we decline to order a new trial,
as requested by Ruiz in his response filed in this Court on May 30, 2017.
Moreover, we order Ruiz to file his appellant’s brief within thirty days of
the filing of the July 7, 2016 hearing transcript.

Id.

We stand by the analysis contained in our July 26, 2017 order. Nowhere in the

trial-court record did Ruiz: (1) request a court reporter to transcribe the June 30, 2016

hearing; or (2) object to the purported failure of the trial court to provide a court reporter

3 It is also of note that the docket sheet reflects that the State and Ruiz put their plea offers on the
record at the June 30, 2016 hearing.

Ruiz v. State Page 21
to transcribe the June 30, 2016 hearing, though the transcript of the July 7, 2016 hearing

reflects that Ruiz re-urged his motion for continuance that was originally asserted during

the June 30, 2016 hearing. Like the motion for continuance, Ruiz could have raised his

complaint about the June 30, 2016 record at the July 7, 2016 hearing; however, he chose

to raise this complaint for the first time on appeal. Additionally, we emphasize that Ruiz

has indicated on appeal that he needs the transcript of the June 30, 2016 hearing to address

his complaint about the trial court’s denial of his motion for continuance. Yet, as shown

above in Ruiz’s first issue, we do not need the record from the June 30, 2016 hearing to

confirm that the trial court did not abuse its discretion in denying Ruiz’s motion for

continuance. Accordingly, we cannot say that Ruiz has demonstrated any prejudice from

the absence of a certified transcript of the June 30, 2016 hearing. We therefore overrule

Ruiz’s eighth issue.

VI. CONCLUSION

Having overruled all of Ruiz’s issues on appeal, we affirm the judgment of the trial

court.

AL SCOGGINS
Justice

Ruiz v. State Page 22
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
*(Chief Justice Gray dissenting with a note)
Affirmed
Opinion delivered and filed April 11, 2018
Do not publish
[CRPM]

*(Chief Justice Gray is concerned that the lack of a complete record will forever plague
the review of this proceeding. In particular, the hearing that has not been transcribed is
the real time recording of appellant’s effort to obtain a continuance after the State had
“dumped” discovery on him only days before trial. This discovery included extraneous
offenses, an out-of-state witness and statements, recorded telephone calls, and technical
electronic evidence for which a computer expert would be essential. He dissented to this
Court’s prior order quoted at length herein and finds the constraints thus placed on his
ability to conduct a proper review of the appellant’s other issues overwhelming. Unable
to join the opinion affirming the judgment, he is left with no option other than to
respectfully dissent. A separate opinion will not be issued.)

Ruiz v. State Page 23