Mario Alberto Ruiz v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00551-CR

Mario Alberto Ruiz, Appellant

v.

The State of Texas, Appellee

FROM THE 453RD DISTRICT COURT OF HAYS COUNTY
NO. CR-18-1258-E, THE HONORABLE DAVID JUNKIN, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Mario Alberto Ruiz of continuous sexual abuse of a

child, aggravated sexual abuse of a child, and indecency with a child by sexual contact. Tex. Penal

Code §§ 21.02, .11(a)(1), 22.021(a)(2)(B). The trial court sentenced Ruiz to forty-five years’

confinement on count one, forty-five years’ confinement on count two, and twelve years’

confinement on count three. The court ordered the sentences in counts one and three to run

concurrently and the sentence in count two to run consecutively to those in counts one and three.

In addition, the court assessed a fine of $5,000 and ordered Ruiz to pay restitution in the amount

of $2,408.20. In three issues, Ruiz complains that the trial court failed to provide a proper jury

instruction, abused its discretion by denying his motion for continuance, and abused its discretion

by excluding certain evidence. We will affirm the trial court’s judgments of conviction.
 BACKGROUND 1

Ruiz and Beatrice Mercado began dating in January 2015. Ruiz would spend

several nights a week at Mercado’s apartment in San Marcos with Mercado and her two daughters,

D.H. and H.H. 2 D.H. was seven or eight years old, and H.H. was approximately five years old.

Mercado and her daughters lived at the apartment for about a year, and then moved in with

Mercado’s brother before moving once more—to the Tuscany Park apartment complex in Buda.

Ruiz would stay with Mercado and her daughters while they were at her brother’s house, and he

lived with them in Buda.

On July 28, 2017, H.H. called Mercado from a friend’s house and accused Ruiz of

having hurt her and done “adult things to her.” Mercado took H.H. to Seton Hays Hospital, where

she was referred by a police officer to Dell Children’s Hospital. Officers called to Seton arrested

Ruiz for unrelated traffic warrants. H.H. was interviewed at Dell Children’s by a Sexual Assault

Nurse Examiner (“SANE”), who examined H.H. and collected oral, vaginal, and anal swabs, as

well as the underwear H.H. was wearing.

Officers with the Hays County Sheriff’s Office (“HCSO”) interviewed Ruiz, who

admitted that he had placed his penis between H.H.’s labia. H.H.’s underwear and the vaginal and

anal swabs tested positive for the presence of male DNA. Further testing established that Ruiz

could not be excluded as a contributor to a semen stain on H.H.’s underwear.

1 Because Ruiz does not challenge the sufficiency of the evidence supporting his
convictions, we provide only a general overview of the facts of the case. We provide additional
facts as necessary to advise the parties of the Court’s decision and the basic reasons for it. See
Tex. R. App. P. 47.1, .4.
2 Because the children are minors, we will refer to them by their initials in the interest of
privacy. See Tex. R. App. P. 9.10(a)(3).
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 In the spring of 2018, D.H. disclosed to Mercado that she too had been sexually

abused by Ruiz. During the earlier investigation of H.H.’s outcry, D.H. had denied experiencing

abuse. However, in separate interviews with a forensic interviewer and a victim service

coordinator with the Hays County District Attorney’s Office, D.H. detailed years of abuse,

including several discrete incidents.

During the guilt-innocence phase of trial, the jury heard testimony from seventeen

witnesses, including Mercado, H.H., and D.H. Among the evidence admitted were H.H.’s SANE

kit and medical records, the forensic DNA report, and a video recording of Ruiz’s interrogation.

The charge issued to the jury included instructions on five lesser-included offenses with respect to

count one: four instructions on aggravated sexual assault of a child—alleging various manners of

offensive contact—and one instruction on indecency with a child by contact. Counts one and two

of the indictment, alleging continuous sexual abuse of a child and aggravated sexual abuse of a

child, respectively, pertained to H.H. Count three, alleging indecency with a child by sexual

contact, pertained to D.H.

After considering the evidence and arguments of counsel, the jury found Ruiz guilty

of all three counts, and the trial court sentenced him as described above. This appeal followed.

DISCUSSION

Ruiz raises three issues on appeal: (1) cumulative error in the jury charge

“deprive[d] the jury of full consideration of the jury charge and deter[red] their proper

consideration of the lesser included offenses”; (2) the trial court abused its discretion by denying

Ruiz’s motion for continuance; and (3) the trial court abused its discretion in allegedly “excluding

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evidence of other potential perpetrators and evidence that [D.H. and H.H.] had been exposed to

improper sexual conduct by third parties on numerous occasions.”

Jury-Charge Error

In his first issue, Ruiz contends that the trial court erroneously instructed the jury

that it must unanimously agree he was not guilty of the greater offense of continuous sexual abuse

of a child before considering the lesser-included offenses. The instruction, Ruiz maintains,

increased the risk that the jury would convict him of the greater offense without “proper

consideration of the lesser offenses.” Ruiz argues that the erroneous instruction was in turn

compounded by three additional errors, namely, the trial court’s failure to instruct the jury that it

must: (1) acquit him on count one if it found the State had not proven the greater offense beyond

a reasonable doubt; (2) resolve any doubt between the greater and lesser offenses in favor of the

lesser offense; and (3) acquit him if it had a reasonable doubt as to whether he was guilty of any

offense. Ruiz alleges that the “cumulative effect of these errors was to deprive the jury of

full consideration of the jury charge and deter their proper consideration of the lesser

included offenses.”

We review alleged jury-charge error in two steps: first, we determine whether error

exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.

Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Ngo v. State, 175 S.W.3d 738,

743–44 (Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the

jury charge error was preserved in the trial court. Mendez v. State, 545 S.W.3d 548, 552 (Tex.

Crim. App. 2018); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on

reh’g) (setting forth procedure for appellate review of claim of jury charge error). If the jury charge

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error has been properly preserved by an objection or request for instruction, see Tex. Code Crim.

Proc. arts. 36.14, .15, reversal is required if the appellant has suffered “some harm” from the error,

which means the error “was calculated to injure the rights of the defendant.” Jordan v. State,

593 S.W.3d 340, 346 (Tex. Crim. App. 2020); see Almanza, 686 S.W.2d at 171.

The following exchange occurred during the charge conference in the present case:

STATE: So we can submit all the lessers in the alternative, but the jury can
only convict on one of them but they can consider all of them?

THE COURT: Now, does that mean that they look through those and say, if you
answer this one, yes, then you stop?

STATE: I’m asking what—what I propose if that’s the case: Option 1,
[O]ption 2, [O]ption 3 and so that way, they know it’s an option they
cannot pick all. So we add that option language. That’s what I saw
in the Griffin charge.

THE COURT: That seems to address at least part of your concern on that subject.

DEFENSE: My concern was the issue of Barios [sic] and that they—and this
language is in there. That it says they don’t have to make a final
decision on the greater before they reach the lessers. It sounds like
that language is in there and that language will stay in there. In terms
of them having multiple lessers, it sounds like what the State is
proposing there will be one verdict sheet for all the lessers, they
could consider those before making a final decision on the greaters
but they would only convict on the lessers and they would be laid
out as different options?

STATE: Options—

DEFENSE: I would like to actually see it but I think I’m good with that as long
as it complies with Barios [sic] which so far it does.

The charge instructed the jury:

If you all agree the state has failed to prove, beyond a reasonable doubt, one or
more of elements 1, 2, 3, and 4 listed above, you must next consider whether the
defendant is guilty of each of the lesser included offenses referred to below
separately and individually.

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 To address Ruiz’s concern that the instruction would impermissibly lead the jury

to believe it could only consider the lesser-included offenses after unanimously acquitting him of

the greater offense, the trial court included his requested instruction, drawing on the Court of

Criminal Appeal’s decision in Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009). At Ruiz’s

request, the trial court instructed the jury:

You may, at your discretion, consider the lesser included offense(s) before making
a final decision as to the greater offense. If, however, you find the defendant
guilty of Continuous Sexual Abuse, you should render no verdict as to a lesser
included offense.

Inclusion of the Barrios instruction vitiates Ruiz’s stated objection regarding the

trial court’s sequencing instruction. Barrios challenged an instruction to the jury that, if it did not

find proof of capital murder beyond a reasonable doubt, it “acquit the defendant of capital murder

and next consider whether the defendant is guilty of robbery,” a lesser-included offense. Id. at

349. Barrios argued that because an acquittal is a verdict requiring unanimity, the trial court

erroneously required the jury to unanimously agree that he was not guilty of capital murder before

it could consider the lesser-included offense. Id. at 350–51. The Court, emphasizing that the jury

has discretion as to the order in which it considers the parts of the jury charge, pointed to a so-called

benefit-of-the-doubt instruction 3 given at trial and explained:

[The jurors] may consider the evidence in light of the entire charge read as a whole.
The trial judge reads the entire charge to the jury before it retires to deliberate; the
jurors will thereby have heard the instruction on the benefit of the doubt before
considering the issue of guilt on any of the offenses included in the charge.
Therefore, even if, and perhaps especially if, the jurors cannot agree as to guilt on
the greater offense, they have already been instructed that they may consider guilt

3 Such instructions mandate that when a jury finds beyond a reasonable doubt that a
defendant is guilty of an offense but entertains a reasonable doubt as to which one, it resolves the
doubt in favor of the defendant and find him guilty of the lesser.
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 as to the lesser offense before deciding on a verdict as to the greater offense . . . .
We hold that the charge allowed the jury to consider the entire charge as a whole
and that the complained-of instruction does not require the jury to unanimously
agree that a defendant is not guilty of the greater offense before considering a
lesser-included offense.

Id. at 352–53 (internal citations and quotation marks omitted).

Ruiz’s requested instruction essentially served the same function as the

benefit-of-the-doubt instruction in Barrios. The jurors in the present case were expressly

instructed that it was within their individual 4 discretion to consider the lesser-included offenses

prior to the greater offense, a conclusion only to be inferred from the benefit-of-the-doubt

instruction in Barrios. As in Barrios, the trial judge read the entire charge to the jurors prior to

their deliberation. Ruiz’s contention that the Barrios instruction conflicted with the trial court’s

initial sequencing instruction, leading to juror confusion, is similarly unavailing. As the Court

noted in Barrios, because jurors may consider the charge as a whole and are not bound by a

particular order to its parts, an instruction that “they may consider guilt as to the lesser offense

before deciding on a verdict as to the greater offense” is not “mutually exclusive” with another

that they “next consider” the lesser-included offense after acquitting the defendant of the greater.

Id. Such a conclusion is, the Court found, too “narrow” an interpretation of the charge. Id. at 352.

Likewise, there is no evidence that the jury was confused by the instructions in the present case.

Therefore, in light of the trial court’s inclusion of Ruiz’s requested Barrios instruction, the jury

4 To the extent Ruiz protests the trial court’s use of the plural “you all” in its initial
sequencing instruction, asserting that the court’s word choice required unanimity in reaching a
verdict on the greater offense prior to considering the lesser-included offenses, his requested
Barrios instruction notably uses the singular, thereby correcting any error.
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was not erroneously instructed that it must unanimously agree he was not guilty of the greater

offense before considering the lesser-included offenses.

The additional jury-charge errors alleged by Ruiz are likewise without merit. First,

citing Boyett v. State, Ruiz maintains that the charge should have instructed the jury to “acquit”

Ruiz of the greater offense if it found that the State had not proven it beyond a reasonable doubt.

692 S.W.2d 512, 515–16 (Tex. Crim. App. 1985) (finding that charge “should have more explicitly

instructed the jurors that if they did not believe, or if they had reasonable doubt of appellant’s guilt

of the greater offense, they should acquit appellant and proceed to consider whether appellant was

guilty of the lesser included offense.”) The Court of Criminal Appeals has conceded that the use

of “acquit” “as it is understood in relation to delivery of a verdict is at odds with the context of the

instruction, which is intended to be considered in relation to jury deliberations.” Barrios,

283 S.W.3d at 353. The Court continues, “The inartful use of ‘will acquit,’ when the intended

meaning seems to be ‘have a reasonable doubt of or cannot agree on guilt,’ could perhaps confuse

a jury.” Id. Finally, the Court in Boyett accepted that a near-identical charge in that case, “although

not a model charge,” was adequate and “essentially instructed the jurors to acquit without

specifically using the word ‘acquit,’ by stating that if the jurors had a reasonable doubt as to the

guilt of appellant to the greater offense, they should next consider the lesser included offense.”

Boyett, 692 S.W.2d at 516. Thus, the trial court’s instruction here that the jury “next consider” the

lesser-included offenses if it found the State failed to prove the greater offense beyond a reasonable

doubt was not error.

Second, Ruiz contends that the trial court erred by failing to include a

benefit-of-the-doubt instruction. “Where an offense consists of different degrees, a charge giving

the defendant the benefit of a reasonable doubt between the degrees would be proper, and it would

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be error ordinarily in such case to refuse such a charge when requested.” McCall v. State,

14 Tex. Ct. App. 353, 363 (1883) (cited with approval by Barrios v. State, 283 S.W.3d 348, 352

(Tex. Crim. App. 2009)). The “general rule” has been that a court “must upon the defendant’s

request give the jury” such an instruction. Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.—

Corpus Christi–Edinburg 1988, pet. ref’d). However, this Court is unaware of—and Ruiz does not

cite to—any authority establishing that a trial court’s decision not to include a benefit-of-the-doubt

instruction is error where the defendant does not request one. Ruiz did not request a

benefit-of-the-doubt-instruction at trial.

Additionally, at least three of our sister courts have found that when a charge

instructs a jury that, if it is not convinced beyond a reasonable doubt a defendant is guilty of the

greater offense, it should acquit him of that offense and consider the lesser offense, “no further

‘benefit of the doubt’ instruction is necessary.” Id.; accord LopezGamez v. State, 622 S.W.3d 445,

460 (Tex. App.—Fort Worth 2020, pet. ref’d) (“The absence of a benefit-of-the-doubt instruction

like that in Barrios did not ‘prevent [the jury] from considering the greater and lesser offenses

together, as was sanctioned in Barrios,’ as Appellant asserts.”); Kihega v. State, 392 S.W.3d 828,

837 (Tex. App.—Texarkana 2013, no pet.). “Any reasonable doubt about whether the appellant

is guilty of the lesser or greater offense thus results in an acquittal of the greater offense before the

jury even considers the lesser offense.” Benavides, 763 S.W.2d at 589. As discussed above, such

an instruction was in essence given in this case.

Lastly, Ruiz asserts that the trial court erred by failing to instruct the jury that it

“must acquit if [it] had a reasonable doubt as to whether he was guilty of any offense.” Ruiz failed

to request such an instruction at trial and has failed adequately to brief the issue before us;

accordingly, the issue is not preserved for appellate review. See Tex. R. App. P. 38.1(i); Torres

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v. State, 979 S.W.2d 668, 674 (Tex. App.—San Antonio 1998, no pet.) (defendant’s jury-charge

complaint waived because of inadequate briefing).

Regardless, the instruction given 5 in the present case is in effect the same as the one

whose omission Ruiz contends was error. Failure to use the wording now requested by Ruiz was

not error.

In his preceding allegations, Ruiz failed to show that the trial court erred. We

overrule Ruiz’s first issue.

Motion for Continuance

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

denying his motion for continuance. He failed to preserve his claim for appellate review.

Article 29.03 of the Texas Code of Criminal Procedure provides that a “criminal

action may be continued on the written motion of the State or of the defendant, upon sufficient

cause shown; which cause shall be fully set forth in the motion.” Tex. Code Crim. Proc. art. 29.03.

Article 29.08 further mandates that all motions for continuance “be sworn to by a person having

personal knowledge of the facts relied on for the continuance.” Id. art. 29.08. The Court of

Criminal Appeals has construed the statutes to require “a sworn written motion to preserve review

5 The jury was instructed:

The State must prove every element of the offense beyond a reasonable doubt to
establish guilt for each offense . . . . If the State does not prove every element of
the offense beyond a reasonable doubt, then you must find the defendant not guilty.
If, after you have considered all of the evidence and these instructions, you have a
reasonable doubt about whether the defendant is guilty, you must find the defendant
not guilty.

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from a trial court’s denial of a motion for continuance.” Anderson v. State, 301 S.W.3d 276, 279

(Tex. Crim. App. 2009). “[A]n unsworn oral motion preserves nothing for review.” Blackshear

v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012). There is no due process exception to the

requirement that a motion for continuance be written and sworn to preserve the issue for

appeal. Id.

All words, phrases, and terms in the Code are “to be taken and understood in their

usual acceptation in common language, except where specially defined.” Tex. Code Crim. Proc.

art. 3.01. The term “sworn” is not defined. We may consult standard or legal dictionaries in

determining the fair, objective meaning of undefined statutory terms, and legal dictionaries to

determine the meaning of undefined legal terms. Watkins v. State, 619 S.W.3d 265, 272–73 (Tex.

Crim. App. 2021). Black’s Law Dictionary defines “Swear” as “1. To administer an oath to (a

person). 2. To take an oath.” Swear, Black’s Law Dictionary (11th ed. 2019). “Oath” in turn is

defined as:

A solemn declaration, accompanied by a swearing to God or a revered person or
thing, that one’s statement is true or that one will be bound to a promise. The person
making the oath implicitly invites punishment if the statement is untrue or the
promise is broken. The legal effect of an oath is to subject the person to penalties
for perjury if the testimony is false. 2. The statement or promise made in such a
declaration. 3. The form of words used for such a declaration. 4. A formal
declaration made solemn without a swearing to God or a revered person or thing.

Oath, Black’s Law Dictionary (11th ed. 2019). Merriam-Webster’s Dictionary likewise defines

“swear,” in relevant part, as “to utter or take solemnly (an oath)”; “to assert as true or promise

under oath”; “to put to an oath : administer an oath to”; “to bind by an oath.” Merriam-Webster’s

Dictionary, Swear, https://www.merriam-webster.com/dictionary/swear (last visited July 27, 2021).

It defines “sworn statement” as “a statement that someone makes under oath and swears to

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be true.” Merriam-Webster’s Dictionary, Swear, https://www.merriam-

webster.com/dictionary/sworn%20statement (last visited July 27, 2021). The Cambridge English

Dictionary defines “sworn” as “formally and officially stated as being true.” Cambridge English

Dictionary, Sworn, https://dictionary.cambridge.org/dictionary/english/sworn (last visited

July 27, 2021).

We and our sister courts have similarly understood Article 29.08 to require some

form of an oath, jurat, verification statement, or affidavit. See Medina v. State, 986 S.W.2d 733,

737–38 (Tex. App.—Amarillo 1999, pet. ref’d) (“[O]ral motions for continuance are properly

overruled if they are not in writing and under oath.”); Reese v. State, 905 S.W.2d 631, 635–36

(Tex. App.—Texarkana 1995, pet. ref’d, untimely filed) (“The first motion for continuance does

not contain language swearing to the stated facts. The second motion does contain such a

verification signed by Reese.”). The Fourteenth Court of Appeals conducted an illustrative

analysis in Woodman v. State:

Appellant’s first motion for continuance was written, but it was not properly sworn.
There was no verification or affidavit attached to the motion. The nearest thing to
a sworn statement was a single line above defense counsel’s signature, which read:
‘Respectfully submitted and the above facts sworn to by as true based upon
information and belief.’ This statement does not qualify as an oath. There was no
jurat or declaration that counsel had made his averments under penalty of perjury.

491 S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).

Here, the motion for continuance was filed a year before its presentment to the trial

court and lacked an oath, verification, attached affidavit, jurat, or similar statement. Defense

counsel merely signed the motion below the Certificate of Service. When the State objected to the

lack of verification, defense counsel had the motion stamped and signed by a notary. Nevertheless,

there is no statement or jurat declaring that the contents of the motion were subscribed and sworn
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to before the notary or made under oath or penalty of perjury. 6 There is likewise no avowal that

the contents of the motion are true. We do not agree with Ruiz that the notary stamp and signature

“sufficiently indicated counsel’s intent to swear to the factual statements in the motion,” nor do

we consider such an inquiry into the mental state of counsel appropriate. The motion is unsworn,

and Ruiz therefore failed to preserve the issue for appellate review. We overrule his second issue.

Exclusion of Evidence

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

excluding evidence “essential to [his] defense,” namely, “information regarding other potential

perpetrators and the fact that the victims had been exposed to improper sexual conduct by third

parties on numerous occasions” purportedly found within thousands of pages of Child Protective

Services (“CPS”) records. However, the ruling Ruiz challenges was not, as he claims, on the

admissibility of the evidence but was instead a grant of the State’s motion in limine. Because Ruiz

did not object to the exclusion of evidence at trial, he failed to preserve the issue for

appellate review.

A motion in limine “is a preliminary matter and normally preserves nothing for

appellate review. For error to be preserved with regard to the subject of a motion in limine,

an objection must be made at the time the subject is raised during trial.” Fuller v. State,

253 S.W.3d 220, 232 (Tex. Crim. App. 2008); accord Geuder v. State, 115 S.W.3d 11, 14–15

(Tex. Crim. App. 2003) (“A trial judge’s grant or denial of a motion in limine is a preliminary

6 When denying the motion, the trial judge stated, “[S]omebody has to swear or verify that
the facts are true and correct. I don’t see that in here but if we assumed that that’s what this
signature is, I think based on the procedural status as it stands right now, I’m going to deny the
Motion For Continuance.”
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ruling only and normally preserves nothing for appellate review.”); see Gonzales v. State,

685 S.W.2d 47, 50 (Tex. Crim. App. 1985) (stating that “[f]or error to be preserved with regard to

the subject matter of the motion in limine it is absolutely necessary that an objection be made at

the time when the subject is raised during trial”); Brazzell v. State, 481 S.W.2d 130, 131 (Tex.

Crim. App. 1972) (“Generally, a motion in limine will not preserve error to the admission of

inadmissible evidence.”) The purpose of a motion in limine “is to prevent matters from coming

before the jury”; such a motion is “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.” Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim. App. 1975).

Prior to an outcry hearing on the first day of trial, the State advised the trial court

that “there were some matters in the Motion in Limine we may want to take up before opening

statements.” The defense disagreed, and the matter was dropped. Later, during its opening

statement, the defense referenced “over 6,000 pages of CPS records,” to which the State responded,

“Judge, this is subject to a Motion in Limine.” The following colloquy then occurred:

STATE: Judge, I specifically requested that there be no mention of CPS
records and that is exactly what [the defense is] about to get into.

DEFENSE I don’t believe it was ruled on.

STATE: I’m asking for a ruling right now then. I asked if y’all were going
to get into anything that was part of my Motion in Limine in opening
statement and you said, no.

DEFENSE: I don’t believe that’s true, not getting into it in opening and we can
take up the Motion in Limine before the evidence came in.

STATE: If we need to have a hearing on the CPS records, let’s have a hearing.

DEFENSE: Let’s have a hearing.

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 Then, outside the presence of the jury, the State argued that the motion “would go

for any specific instances of conduct or any admissible evidence or anything that is irrelevant” in

the CPS records. When asked by the trial court why the records should come in, the defense

responded, “We are not asking that the records be submitted as a defense exhibit,” instead arguing

that reference to the contents of the records was relevant to rebut what the defense perceived to be

the State’s theory—that “there is nobody else that could have imparted these children with the

sexual knowledge necessary for them to have outcried the way they did.” The defense asked the

trial judge for permission “to at least reference the fact that these children are mentioned in 6,000

pages of CPS records.” The State once more urged that “[a]ny attempts to bring . . . up” the records

would be improper impeachment, irrelevant, and prejudicial. The trial court then made its ruling:

I’m going to grant the Motion in Limine . . . . I’m going to grant the Motion in
Limine at this point. I don’t think it’s relevant, but I do recognize that that may
change as the evidence is presented so I’m going to grant the Motion in Limine and
ask you not discuss it in opening statements and then we will see if it comes around
as the case proceeds.

Neither the records nor their contents were referenced by either side during the trial,

with the exception of the defense’s being permitted on cross-examination to ask Mercado whether

she allowed her children to live with a brother of hers who is a registered sex offender. 7 Even

then, the trial judge stated that he did not believe it would be in violation of the motion in limine

to do so. 8

7When asked whether she had said that she allowed her children to live with her brother,
Robert, Mercado clarified that she had been speaking of her other brother, Alex, and that at no
point had the children lived with Robert, who, she explained, “has been in prison for ten years.”

The trial judge explained, “I don’t think it’s a violation of the Motion in Limine. Those
8

were CPS records.”
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 The motion in limine was revisited once more prior to closing arguments. Noting

that “you [the trial judge] granted a Motion in Limine on” “extraneous matters as to other things

that may have happened to the complainants,” the defense made a second motion in limine that

the State not be permitted to make a representation that “nothing else has ever happened to these

girls,” which the trial court granted.

Ruiz’s contention that “[a]lthough couched in terms of a ruling on the Motion in

Limine, the court’s ruling was actually a ruling on the merits that the evidence was not admissible

on relevancy grounds” is therefore demonstrably refuted by the record. During opening arguments

and outside the presence of the jury, the trial judge stated, “we are taking up at least one issue on

[the] Motion in Limine.” Both sides—and the trial judge—repeatedly referenced the motion in

that hearing, at the bench prior to the cross-examination of Mercado, and during the hearing on the

defense’s motion in limine prior to closing arguments. The defense conceded that it was not trying

to have the CPS records submitted as an exhibit. Indeed, in the hearing on the defense’s motion

in limine, defense counsel expressly conceded that the trial judge had granted a motion in limine

with respect to the contents of the CPS records. Consequently, because Ruiz did not object to the

trial court’s grant of the State’s motion in limine at trial, he failed to preserve the issue for appellate

review. We overrule his third issue.

CONCLUSION

Having overruled each of Ruiz’s issues, we affirm the trial court’s judgments

of conviction.

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 __________________________________________
Edward Smith, Justice
Before Justices Goodwin, Kelly, and Smith

Affirmed

Filed: July 30, 2021

Do Not Publish

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