Opinion
03-22-00073-CR
06-30-2023
Ronald Cruz Garza, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. CR2017-403, THE HONORABLE STEPHANIE BASCON, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Triana and Theofanis
MEMORANDUM OPINION
Rosa Lopez Theofanis, Justice
Appellant Ronald Cruz Garza was convicted by a jury of sexual assault and sentenced to a statutorily-mandated term of life imprisonment. See Tex. Penal Code §§ 12.42(c)(2)(B)(ii), 22.011. In five issues on appeal, Garza contends that 1) the trial court erred by admitting evidence of his prior sexual assault conviction; 2) the trial court erred by admitting testimony of a second extraneous offense; 3) the trial court erred by failing to provide a limiting instruction when it admitted the extraneous-offense evidence; 4) the trial court erred by providing an incorrect extraneous-offense instruction in the guilt-innocence jury charge; and 5) the evidence presented at trial is legally insufficient to support his conviction. We will affirm the trial court's judgment of conviction.
BACKGROUND
Garza was charged in a two-count indictment with endangering a child and sexually assaulting his partner's niece, M.J. The trial court granted his pretrial motion to sever, and he elected to proceed on the sexual assault count. At trial, the State presented testimony from M.J.; Ron Womack, a retired officer formerly with the Comal County Sheriff's Office; and M.J.'s aunt, C.B. Its exhibits included documents pertaining to Garza's 1997 conviction for sexual assault in Bexar County as well as his 10-print fingerprint card. The defense presented testimony from retired Bulverde Police Department Detective Richard Spears; Garza's brother, Roger; Ana Marie Ramirez, Garza's partner and M.J.'s aunt; and Karina Ramirez, Ana's sister.
Although M.J. was an adult at the time of the offense, we will refer to her by her initials in the interest of privacy.
M.J. testified about the night of November 23, 2014, the date of the alleged offense. She fought with her then-boyfriend and went to Garza's house to hang out with Garza and Ana, who were dating. At the time, M.J. was 22, and Garza and Ana were around 50. After arriving at the house, M.J. and Ana sat outside by a fire with Garza and his 12-year-old son and watched movies. M.J. talked with Garza's son for the majority of the night.
She had been in a car accident a couple of years before and was still suffering back pain. When she got to the house, Garza "made [her] lift [her] shirt up" and affixed a medicinal patch. Ana and Garza-who was not a masseur and had no medical training-were "both very adamant" on his massaging M.J. Despite her reservations and at Garza's insistence, M.J. changed out of her jeans and into a pair of "boxer brief-type things" that Garza gave her. The massage was long and made her feel uncomfortable. She cried during it but thought that Ana, who was "watching over it the entire time," would stop it if it became inappropriate.
After the massage, M.J., Garza, and Ana hung out in the living room. M.J. was on a love seat, and Garza and Ana were on a couch behind her. M.J., still uncomfortable and wearing the boxer-briefs, pretended to sleep but ended up actually falling asleep.
She awoke to Garza's "fingers inside of [her]." She told him to stop and tried to get him off of her, but when she at last succeeded, "he just kind of looked at [her;] like, laughed kind of"; and "brought her a blanket." She did not say anything to Ana, explaining that she "didn't know how to, I guess, say anything." Instead, she called a cousin but could not reach him. She wanted to leave but felt "weird" leaving Ana there. M.J. remembered eating a bowl of cereal and eventually leaving in the afternoon.
She further testified that at no point had she mentioned wanting to have sexual contact with Garza. She did not give Garza permission to "put his hands inside [her] vagina" and testified that she "can't grant somebody permission to do anything while [she is] sleeping."
On cross-examination, her testimony was again limited to what occurred on the night of the alleged offense. She had not consumed alcohol that night, but there had been methamphetamine (meth) at Garza's house, which she could not recall bringing. Although she acknowledged using meth "during that part of [her] life," she could not recall whether she had ingested any at the house. She agreed that in her statement to police, made two days after the alleged incident, she had indicated that she had taken a combination of hydrocodone and acetaminophen but had not mentioned using meth.
She clarified that she pretended to sleep on the love seat because she could "hear them almost conspiring about [her]." Specifically, she could hear them talking under their breath about [her], [her] name," and she heard Ana "saying, ['N]o, don't.[']" When asked if she "should have made some noise," M.J. reiterated that she had told Garza to stop and get off of her. She also testified that she had not said anything to Ana because Ana is "consumed" by Garza, and nothing M.J. could have said would change "where Ana stood."
C.B., M.J.'s aunt and Ana's sister, testified about a sexual assault that Garza allegedly committed around 1982. When C.B. was 14, she visited the Garza residence with Ana, who was dating Garza's brother Roger. Her family and the Garzas were "acquaintances." While Ana and Roger were in a bedroom, C.B., who was sleeping face down on a couch, woke up and felt a hand touching her "private parts" between her jeans and underwear. She was "[p]ositive" that Garza, who is four or five years older than her, was the one touching her, and she yelled, "What the fuck are you doing?" He laughed at her and told her that he was trying to see if she was asleep. She and Garza never dated or flirted, and nothing that she had said or done could have given him the impression that she was okay with his touching her in that way. She does not think that Garza was playing around because "[h]e's always been that kind of person that would do stuff like that."
Because C.B. was a minor at the time of the alleged offense, we will refer to her by her initials in the interest of privacy. See Tex. R. App. P. 9.10(a)(3).
When she yelled, Ana and Roger came out of the bedroom. C.B. later told her sisters Roxanne and Rachel what had happened; Ana "was already knowledgeable of what occurred." C.B. did not make a police report because Ana asked her not to say anything. On cross-examination, C.B. testified that she "suppose[s]" that Garza's statement that he was just checking to see if she was awake "sound[s] like something a teenage boy might do to a teenage girl."
Ana testified that she and Garza became friends when she returned to Texas in 2014, became "partners" in 2017 or 2018, and later moved in together. She also testified about her recollection of November 23, 2014. That night, she had plans to spend time with Garza alone, but M.J. got into a fight with her boyfriend and "begged to come with her."
M.J. drove them to Garza's house, and they arrived around 10:30 p.m. after stopping for margaritas, which was M.J.'s idea. M.J. was "erratic" and "all over the place." When they got to the house, she, Ana, Garza, and his son had a "shooting contest" with BB guns and balloons for a couple of hours; there was no fire outside, and Garza put his son to bed around 11:30 p.m. or 12:30 a.m.
M.J., wearing a t-shirt and "skinny pants," complained of back pain and asked Garza for a massage. Ana offered her a pair of men's shorts, and although M.J. at first demurred, she changed her mind when Ana said, "[W]e'll just do our thing and then you can go." During the massage, M.J. seemed calm. When Ana asked her if she felt okay or if anything was bothering her, she replied that she felt fine and that the massage felt good.
After the massage, M.J. changed back into her pants and lied down on the living room couch. Garza woke to check on his son around 3 a.m. and put a blanket on her. Ana, who was awake, was aware of this because she "had an uneasy feeling and [she] was just watching" M.J. In the morning, M.J. woke up, ate a bowl of cereal, "hung around for a while," and left around 3 p.m. She did not tell Ana that Garza had touched her in an inappropriate way, and Ana never heard her "scream or cry out."
Ana testified that she remembered seeing drugs in Garza's bathroom; that M.J. took out a pipe, blowtorch lighter, and baggie containing white powder; and that M.J. put the powder in the pipe and smoked it. Ana told M.J. that she needed to "get that stuff out of here" because it was Garza's house, and his son was present. After smoking, M.J. was "all over the place," "very erratic," and "very loud." Ana did not tell Garza that she saw M.J. smoking drugs. She testified that the drugs were not shared with her or Garza, that she has never smoked meth, and that she is unfamiliar with it.
During cross-examination on the next day of trial, she testified that she had learned the substance of other witnesses' testimony the day before after speaking with Garza and his brother, Ray. Specifically, she testified that Garza had told her about C.B.'s testimony and "a little bit about" M.J.'s. However, Ana also testified that Ray "had mentioned that [C.B.] was in there testifying and basically what she was attesting to."
On several occasions, the substance of Ana's testimony changed after she was shown portions of her recorded police interview to refresh her recollection. She testified that she did not recall telling the officer that they had all used meth or "ice." After being shown the video, however, she testified that she, Garza, and M.J. had used meth and that she had lied to the jury in her testimony the day before.
Similarly, after reviewing the video, she testified that there had in fact been a fire outside, that she and M.J. had arrived around midnight, that Garza's young son was present while they were using meth, and that he had been awake at times from midnight until 7 a.m. She clarified that while she had never "smoked" meth, she had "ingested" it through her nasal passage. And she explained that although she told the interviewing officer that Garza used meth, "[i]f he did it, [she] did not actually see him do it."
She testified that while she also told the officer that Garza was very good at massages and that he had suggested that he give one to M.J., he had only done so after M.J. asked for a massage, and he was "uncomfortable" with massaging her.
Testifying about the massage, Ana stressed that she asked M.J. "repeatedly" "are you okay, are you uncomfortable, do you want him to stop," but M.J. never replied. Ana did not see her cry, and Ana was watching "[t]o make sure there was nothing inappropriate going on."
M.J. "was in a lot of pain and discomfort" and "kept saying, [']oh, that hurt.[']" Ana had given M.J. the boxers to wear during the massage because Garza wanted to use oils on her and did not want to get them on her jeans. Ana explained that she was there to "protect" M.J. and, when asked if she had been making sure that nothing inappropriate happened, responded, "I was taking care of my niece, yes."
Ana also testified about what she observed when she, Garza, and M.J. went into the living room. M.J., who had changed back into her pants, was on a full-length couch, and Ana was on an ottoman. She did not recall Garza sitting next to her. M.J. was not asleep because she was moving and making sounds. Ana did not recall telling the interviewing officer that M.J. had remained in the shorts.
Ana testified that when Garza came into the living room, she saw him put a blanket on M.J. before going back to his bedroom. She testified that she "might have" told the officer that she did not see Garza put the blanket on M.J. but had noticed that M.J. had a blanket and thought "that was really nice of [Garza]." However, she then testified once more that she "saw him put the blanket on her and he walked straight back to his room."
M.J. seemed "normal" when she left the next day. Ana did not recall telling the officer that M.J. was "still bothered." Ana testified that M.J. never asked for Garza to have sexual contact with her and never gave the impression that "it was okay for him to have any type of sexual contact or sexual intercourse with her." She testified that M.J. was, however, "very flirtatious that night," which Ana had not told the officer and which she "might" have been mentioning for the first time. She and Garza had a conversation on the night of the alleged assault about M.J., in which Garza "might have said" "that it will be okay, you'll be right there. I'm not going to do anything inappropriate" and to which Ana replied, "[O]kay, because that would be . . . fucked up."
Lastly, Ana testified about C.B.'s allegation. Ana "had never heard about that from her ever before." However, she also testified that she recalled C.B. claiming "a long time ago" that Garza had "grabbed her butt." Ana explained that Roger had actually been the one that "smacked her." With regard to C.B.'s testimony that Ana had asked her to conceal what happened, Ana testified, "That, I do not recall . . . . That never happened. That never happened."
On cross-examination, she testified that she knows Garza well, knows that he is a "convicted sex offender," and knew that in 2014. When asked if he had told her about his conviction for "raping a woman five to six times," she replied, "He told me about the incident, yes, he did . . . . He told me it was a woman that he lived with, his girlfriend."
On redirect, she testified that she had not intended to lie or mislead the jury. She also testified that C.B. never alleged sexual assault and that she had never been concerned about Garza being inappropriate with M.J. M.J. had never voiced any "objections, complaints, [or] concerns," while at Garza's house and could have left had she wanted to.
On recall by the defense, M.J. testified that sometime between 2014 and trial, she sent an apology to Ana on Facebook. The apology was not for what happened to her at Garza's house but "to try to make amends for [her] family." In it, she "[did not] say anything happened," and she was "[p]robably crying about the loss of [her] family" before writing the message. She testified that when Ana asked her to change her story, it "tore [her] family apart." She no longer has a relationship with Ana and has gained nothing by making her allegation.
M.J. also testified that she did not put C.B. in touch with the prosecution or speak with her about the specifics of C.B.'s allegations. M.J. explained that she only knew that "something had happened to her a long time ago."
Officer Ron Womack testified that he fingerprinted Garza during trial, and that from the prints and other identifying information, it was his expert opinion that Garza was the same individual referenced in the documents pertaining to the 1997 sexual assault conviction in Bexar County.
The documents included the indictment, the 1997 judgment of conviction, plea paperwork, an offense report, and the victim's sexual assault forensic examination (SAFE) records and sworn statement. In her statement, the victim attested that Garza grabbed her arm, forced her into her home, threatened to "blow [her] fucking head off" if she did not undress, locked the front door, shoved her upstairs, forced her to put on lingerie, and had vaginal intercourse with her "5 or 6 times" from 9:00 a.m. to 3:00 p.m. She stated that she kept telling him to stop but he only quit because he knew that her daughter would be home soon. The offense report noted that the victim knew that Garza carried guns, that Garza told her, "You had better not try to drive your car," that the victim believed he may have placed a bomb on her vehicle, and that an officer recovered a device on the vehicle that prevented it from starting. The SAFE records indicated that the victim was bruised and scratched and that she was tearful during the interview.
Detective Richard Spears testified that he was assigned to M.J.'s case after they spoke on the phone, and she alleged that she had been sexually assaulted. When he interviewed her, she "seemed like she'd been through a traumatic experience." She provided him with a pair of blue shorts, which he submitted for DNA testing. He recalled that DNA from two individuals was found on the shorts and believed that Garza was one of the contributors. However, he also testified that it would be fair to assume that Garza's DNA would be on his own underwear. He testified that M.J. had stated that there were drugs at the residence when the assault allegedly happened, that he could not recall if she admitted to using the drugs, and that at the conclusion of his investigation, he decided not to seek an arrest warrant for Garza.
On cross-examination, Spears testified about his interview with Garza approximately four or five days after the alleged assault. Although Garza stated during the interview that on the 23rd he and Ana smoked meth and that he also smoked marijuana, Spears did not attempt to obtain a search warrant for the drugs. Garza admitted to giving M.J. a massage and suggesting that she wear loose-fitting boxer shorts. He stated that during the massage, Ana kept asking M.J. if "everything was okay with the situation," which indicated to Spears that "Ana was concerned that Mr. Garza may have had something more on his mind than just a massage." Garza also stated that after the massage, M.J. went into the living room and lied down on the couch; that Ana went into the living room as well; and that he covered M.J. with a blanket. Spears testified that at some point during the interview, Garza's demeanor changed. He was "wringing his hands and became - was hunched over." He testified that he recalled Ana saying during her interview, "I'm not saying it didn't happen or that she's making it up, I just didn't see anything, and I can't believe this."
Spears also testified to shortcomings with his investigation. He did not seek out physical evidence. M.J. was not provided a SAFE, and he did not "have a good answer" as to why. Similarly, despite knowing that Ana had called M.J. during M.J.'s interview and having reason to believe that Ana and Garza were discussing the investigation with each other, he did not attempt to obtain cell phone records. Nor did he take photos of Garza's residence, which, he testified, would have been helpful.
Roger Garza testified that he dated Ana when he was 18 or 19 years old and that he had not heard the allegation that his brother touched C.B. inappropriately until trial. He also testified that he ran into one of C.B.'s sisters after the alleged incident and that she gave him a hug and was "very cordial." He testified that while he could remember Ana and C.B. being at his house, he and Ana were never alone in a room together. He testified that in his opinion, C.B. would have "told everybody about it" had she been sexually assaulted.
Karina Ramirez, Ana and C.B.'s sister, testified that she only learned about C.B.'s allegation at trial and that C.B. never shared that Garza had done something to her.
The jury found Garza guilty of sexual assault. Following a hearing on punishment, the jury found the enhancement paragraph alleging the 1997 sexual assault conviction to be true and sentenced him to the statutorily-mandated term of life imprisonment.
DISCUSSION
I. Admissibility of 1997 Conviction
In his first issue, Garza contends that the trial court abused its discretion by admitting evidence of his 1997 conviction for sexual assault. Specifically, in three sub-issues, he argues that the court erred by: finding that he opened the door to the evidence, overruling his objection under Rule of Evidence 403, and admitting evidence "that far exceeded [the] scope of what the State previously argued it intended to introduce." See Tex. R. Evid. 403.
A. Opening the door
Garza first argues that the trial court erred by finding that he "opened the door" to evidence of his conviction under Rule of Evidence 404(b). See id. R. 404(b). He asserts that because he did not raise defensive theories of fabrication, consent, or lack of opportunity, evidence of the conviction was inadmissible for the purpose of rebutting such theories.
Rule 404(b) 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." Id. R. 404(b)(1). The rule is one of inclusion, not exclusion-it excludes only evidence that is offered solely for proving bad character and conduct in conformity with that bad character. Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016). Extraneous-offense evidence may be admissible, however, "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).
These exceptions are neither mutually exclusive nor exhaustive. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). Extraneous-offense evidence is also admissible to rebut a defensive theory, Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see DeLeon v. State, 77 S.W.3d 300, 313 (Tex. App.-Austin 2001, pet. ref'd), which a defendant may raise in voir dire, his opening statement, on cross-examination, or in his case-in-chief, see Dabney, 492 S.W.3d at 318 (voir dire and opening statement); De La Paz, 279 S.W.3d at 345-46 (case-in-chief); Powell v. State, 63 S.W.3d 435, 439 (Tex. Crim. App. 2001) (cross-examination). A defendant opens the door to the evidence by "creat[ing] a false impression that the admission of extraneous offense evidence would correct. When a party opens the door, opposing counsel is permitted to present evidence to correct the mistaken impression." Houston v. State, 208 S.W.3d 585, 591 (Tex. App.-Austin 2006, no pet.) (internal citation omitted).
Rebuttal of a theory that the complainant fabricated the allegations against the defendant is one of the "other purposes" for which extraneous-offense evidence may be admitted under Rule 404(b). Sandoval v. State, 409 S.W.3d 259, 301 (Tex. App.-Austin 2013, no pet.). To raise a theory of fabrication, a defendant need not use "magic words," nor must the theory be "extreme." Gaytan v. State, 331 S.W.3d 218, 225 (Tex. App.-Austin 2011, pet. ref'd). However, merely challenging the complainant's credibility or denying the commission of an offense does not generally open the door to extraneous offenses. See id.; De La Paz, 279 S.W.3d at 343. "There is no bright line between a general challenge to memory or credibility and a suggestion of conscious fabrication, but the trial court should determine whether the cross-examiner's questions or the tenor of that questioning would reasonably imply an intent by the witness to fabricate." Hammons v. State, 239 S.W.3d 798, 805 (Tex. Crim. App. 2007) (discussing Rule of Evidence 801(e)(1)(B), which concerns admission of prior consistent statements to rebut express or implied charge of recent fabrication).
In adult sexual assault cases, extraneous-offense evidence may also be admitted to rebut a defensive theory that the complainant consented to the sexual contact. See Martin v. State, 173 S.W.3d 463, 466-67 (Tex. Crim. App. 2005). In such cases, "lack of consent is an element of the alleged offense." Id.; see Brown v. State, 96 S.W.3d 508, 512 (Tex. App.- Austin 2002, no pet.) ("In a prosecution for sexual assault of an adult, the State must prove that the defendant engaged in the conduct intentionally or knowingly without the complainant's consent."). "When the defensive theory of consent is raised, a defendant necessarily disputes his intent to do the act without the consent of [the complainant]. His intent is thereby placed in issue." Rubio v. State, 607 S.W.2d 498, 501 (Tex. Crim. App. 1980); see Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007).
In addition, "[e]vidence of an extraneous offense to rebut a defense of 'lack of opportunity' or 'impossibility' is admissible under Rule 404(b)." Wheeler v. State, 67 S.W.3d 879, 888 n.21 (Tex. Crim. App. 2002) (citing Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001) (extraneous sexual offenses admissible in sexual abuse case where defense claimed lack of opportunity to commit offense because he was never alone with victim and many other children were always present); Abshire v. State, 62 S.W.3d 857, 860 (Tex. App.-Texarkana 2001, pet. ref'd) (extraneous-offense evidence admissible in child sexual assault case where defense was lack of opportunity and where defendant's family members testified that he never had opportunity to commit offense in his home because no room was ever locked and people were always in position to see what transpired in home)); see Sandoval, 409 S.W.3d at 299.
We review a trial court's ruling on the admissibility of Rule 404(b) evidence for an abuse of discretion and will uphold the ruling if it is correct on any applicable theory of law, "even if the trial judge gave the wrong reason for his right ruling." De La Paz, 279 S.W.3d at 344. A court's ruling on whether extraneous-offense evidence was admissible to rebut a defensive theory should be upheld if it is within the zone of reasonable disagreement. Dabney, 492 S.W.3d at 318. A ruling is within this zone unless the court acts "arbitrarily or unreasonably" or "without reference to any guiding rules and principles." State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)).
It is evident from the record that Garza raised defensive theories of fabrication, consent, and lack of opportunity at trial. The theories of fabrication and consent were closely interconnected. During voir dire, defense counsel posited the following hypothetical in which an intoxicated individual consents to sexual contact but later regrets the encounter and suffers from "buyer's remorse":
Has anybody known a person who has made a bad judgment call when placed in a situation that they later regret? Does that equal sexual assault all the time? That's going to be the task of this jury, to make that call. So they've got to prove all the elements.
I want to talk about intoxication and I want to [talk] about consent. I want to talk about those things kind of all together. And I want to start with this scenario - and we usually see it in these movies, these romantic comedy movies, right? And it's a very lighthearted take on a very serious subject. And it goes like this, two people meet each other, don't know each other very well, and they are out and there's a party. And there's, you know, the usual stuff that you see in these formula movies. And inevitably, you'll see the next morning somebody wakes up and they're in someone else's house, in a bed that they don't recognize, and they check and realize they do not have clothes on, and they look around, where is the other person?
And it's all kind of a lighthearted take on this idea that sometimes people make decisions without thinking it through, or maybe not even realizing what they did, right?
So on this idea of consent and voluntary intoxication, counsel is correct. The law is very clear, that if you are voluntarily intoxicated, that's not a defense to the crime, right? Well, I would have never taken advantage of her if I hadn't been drinking. We can all see that that would be a ridiculous defense. Well, you're the one that ingested that alcohol, nobody made you take it.
Let's flip the coin. Let's say that the person who is making the allegation voluntarily consumed the alcohol, and then had buyer's remorse. What does that mean, buyer's remorse? Anybody?
You have second thoughts about a decision that you made. And you want to go back and say, well, I didn't agree to that. What happens when you go buy a used car and you sign all the contracts and take it home, and you come back in a week and you say, I want to bring it back, I changed my mind. It doesn't work like that, right?
So is the person who's being accused of the crime responsible for the fact that you've changed your mind about your behavior after the fact? And maybe you said, well, I wouldn't have made that decision and I wouldn't have consented if I hadn't of been drinking. You know, there's no evidence that somebody made you do that, right? Doesn't it work both ways?
Anybody disagree with that? Should a person be able to reinvent history and say, well, yes, I agreed and, yes, I wasn't forced and, yes, nobody made me consume whatever, but now in retrospect, it wasn't really my free will talking, I didn't really agree.
The implication from counsel's hypothetical is clear. M.J., under the influence of meth, consented to Garza's sexual conduct but, now regretting having done so, has concocted a false allegation of sexual assault against him. To that end, counsel repeatedly cautioned the panel that the issue of consent would be of paramount importance, including through the following statements:
1. [Being a juror] gets much tougher when the case before the Court is something of such a hot button issue as consent to sexual behavior, right?
2. How many of you said, oh, come on? Is that really what that case was about? I thought this was going to be a DWI. I don't want to hear about penetration and, you know, consent and all that kind of stuff for two or three days, and then you want me to pick whether it was voluntary consent or not? I can't do that.
3. [Y]ou know a lack of consent has to be proven, also. So if the element of consent is not clear, and I'm going to spend a good amount of time on that issue, then you got to find him not guilty.
Counsel similarly raised the issue of consent when cross-examining M.J. about her purported meth use. When asked, "Now, are there times when you use that drug that you do things that maybe you wouldn't do if you weren't using that drug," M.J. responded, "I'm sure everybody has felt like that that's used that, yes." Counsel also asked whether she could simply have not changed her clothes and not consented to the massage, whether she was wearing underwear beneath her pants, and whether she used meth before or after the massage. In response to the latter question, she answered, "Well, I guess I just didn't think that that was maybe important, what substances had been taken, because regardless of the fact, I never gave him permission to put his hands inside of me." The following exchange then occurred:
Q. [W]hat I'm asking you is: You've agreed with me that taking the methamphetamine could alter your state of sobriety, correct?
A. Yes.
Q. It could affect your memory and/or your perceptions; would you agree?
A. Usually, drugs do.
Q. And it could affect you agreeing or not agreeing to do things under its influence that you might not do otherwise?
A. In what context?
Q. Well, have you done things under the influence of drugs that you wouldn't do when you were not under the influence of drugs?
A. There are many things that I've done that I'm not proud of under the influence of drugs. But I have definitely been able to say whether or not I've given somebody permission to touch me, and that was not something that I did.
With respect to the defensive theory of lack of opportunity, counsel suggested through his questioning of M.J. that Ana's proximity in the living room would have precluded the alleged assault. Specifically, the trial court could have reasonably inferred that the following exchange was intended to raise the theory before the jury:
Q. But you didn't stay in the living room by yourself. Isn't it true that your aunt got on the couch right next to you?
A. She was on the couch behind me.
Q. Okay. And so the entire time that you're in that room where you're pretending to be asleep, she's on the couch right next to you?
A. I believe she was.
Q. So if at some point after you fall asleep, and we're not talking about morning hours, it's already light outside, you're awakened or startled.
You should have made some noise, right?
A. I - I'm sure I did tell him to stop and get off of me. Again, I was sleeping and it was not something that I expected to be woken up that way. It was very shocking to me.
Q. Okay.
A. And I didn't know what to make of the situation.
Q. But was your aunt still on the couch next to you, is my question?
A. She was - I believe she was. I honestly don't recall. As soon as it happened, I was just mortified and I don't think I took the time to look back and see if she was still lying there. I kind of just sunk into myself and didn't say anything.
Q. Okay. But do you think you made enough noise that she would have heard you or anybody in the room would have heard you?
A. Apparently not, because she didn't say anything.
Counsel's explanation for the questioning-that he sought only to "enlighten the jury as to who is present, what's happening, where they are positioned"-is unconvincing.
From this record, we conclude that Garza raised defensive theories of fabrication, consent, and lack of opportunity, which evidence of his 1997 conviction was admissible to rebut. Thus, the trial court did not abuse its discretion by admitting the evidence under Rule 404(b). See De La Paz, 279 S.W.3d at 344; Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App. 2016) ("An evidentiary ruling will be upheld if it was correct on any theory of law applicable to the case.").
B. Rule 403
Garza next argues that the trial court erred by overruling his objection under Rule of Evidence 403. Liberally construing his brief, he also appears to assert that the court erred by not conducting its Rule 403 analysis on the record. See Tex. R. App. P. 38.9.
Garza asserts that the trial court did not conduct an analysis under Rule 403, did not weigh the relevant factors, and "abused its discretion by never bothering to even exercise it in a meaningful way that is required by statute."
First, although "it is most helpful to reviewing courts," "a trial judge is not required to articulate his Rule 403 analysis on the record." State v. Mechler, 153 S.W.3d 435, 444 n.8 (Tex. Crim. App. 2005); see Hitt v. State, 53 S.W.3d 697, 706 (Tex. App.-Austin 2001, pet. ref'd). In overruling a Rule 403 objection, the court is assumed to have applied a Rule 403 balancing test and determined the evidence was admissible. Hitt, 53 S.W.3d at 706 (citing Yates v. State, 941 S.W.2d 357, 367 (Tex. App.-Waco 1997, pet. ref'd); Poole v. State, 974 S.W.2d 892, 897 (Tex. App.-Austin 1998, pet. ref'd)).
Here, during the evidentiary hearing on the conviction's admissibility, defense counsel explained that "[t]he issue is the balancing test under Rule 403" and asserted that admitting the conviction would "open[] up such a huge can of worms . . . that [] 403 is set to prevent." In response, the State argued that the evidence satisfied the four-factor test for admissibility under Rule 403 established in De La Paz and provided a brief analysis for each factor. See 279 S.W.3d at 348-49. At the hearing's conclusion, the trial court ruled that the evidence was admissible. When the State subsequently moved for the evidence to be admitted, defense counsel re-urged his objections from the hearing, which the trial court overruled. Thus, we conclude that the trial court did not err by conducting its Rule 403 analysis off the record.
Rule of Evidence 403 provides that a trial court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. The rule favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). This is particularly so in "he said, she said" sexual assault cases, in which Rule 403 "should be used sparingly to exclude relevant, otherwise admissible evidence that might bear upon the credibility of either the defendant or complainant." Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009). Under the rule, trial courts have "considerable freedom in evaluating proffered evidence's probative value in relation to its prejudicial effect," and there should be "a corresponding reluctance on the part of an appellate court to reverse trial court decisions which admit or exclude evidence." Montgomery, 810 S.W.2d at 378.
In conducting a Rule 403 analysis, the trial court must balance the claimed probative force of the proffered evidence along with the proponent's need for the evidence against:
(1) any tendency of the evidence to suggest that the case would be decided on an improper basis; (2) any tendency of the evidence to confuse or distract the jury from the main issues; (3) 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 (4) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.Henley, 493 S.W.3d at 93 (citing Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)). These factors may blend together in practice. Gigliobianco, 210 S.W.3d at 642.
Factor 1: Inherent Probative Value
Probative value refers to how strongly an item of evidence "serves to make more or less probable the existence of a fact of consequence to the litigation-coupled with the proponent's need for that item of evidence." Id. at 641. When the evidence is of an extraneous offense, one "important measure" of its probativeness is its similarity to the charged offense. Robinson v. State, 701 S.W.2d 895, 898 (Tex. Crim. App. 1985); see Clark v. State, 726 S.W.2d 120, 123 (Tex. Crim. App. 1986). Another is the evidence's temporal proximity; a substantial gap in time between the offenses will weaken the evidence's probative value "because, logically, the passage of time allows things and people to change." Gaytan, 331 S.W.3d at 226-27; see Perez v. State, 562 S.W.3d 676, 690 (Tex. App.-Fort Worth 2018, pet. ref'd). However, remoteness alone "is not sufficient to render an extraneous offense excludable under Rule 403," Gaytan, 331 S.W.3d at 226-27, and any loss of probative value resulting from the remoteness of an extraneous offense may be offset by its similarities with the charged offense, see, e.g., Robisheaux v. State, 483 S.W.3d 205, 220 (Tex. App.-Austin 2016, pet. ref'd); Newton v. State, 301 S.W.3d 315, 317, 320 (Tex. App.-Waco 2009, pet. ref'd).
The conduct underlying Garza's conviction occurred in 1995-approximately 22 years before the charged offense. Although we have previously described events occurring 24 and 28 years before a charged offense as "extremely remote," Gaytan, 331 S.W.3d at 227, both we and our sister courts have nevertheless found such gaps not to require exclusion, particularly when the extraneous and charged offenses share similarities, see id. (determining first factor was neutral or at most "somewhat" favored exclusion where "remarkable similarities" strengthened probative value of evidence); Newton, 301 S.W.3d at 320 (concluding first factor weighed slightly in favor of admissibility despite 25-year gap between similar extraneous offense and charged offense). At least one court has also suggested that remoteness concerns are mitigated when, as here, a final conviction has been obtained for the extraneous conduct. See Perez, 562 S.W.3d at 690 (explaining that "a substantial gap in time between the occurrence of extraneous offenses-especially those in which a final conviction was not obtained-and the charged offense will weaken the probative value of the extraneous-offense evidence").
The conviction was highly probative for rebutting the defense's theories of fabrication and consent. See James v. State, 623 S.W.3d 533, 551 (Tex. App.-Fort Worth 2021, no pet.) ("The probative value of the extraneous-offense evidence was high in that it rebutted [defendant's] fabrication defense."). Evidence that Garza had previously been convicted of-and indeed had pleaded guilty to-vaginally penetrating an adult without her consent made it less likely that M.J. was fabricating her allegation or that she consented to Garza's sexual contact. Although the conviction's probative value is lessened by its remoteness as well as significant dissimilarities between it and the charged offense, the first factor at most somewhat favors exclusion.
We cannot say the same for the lack-of-opportunity theory, as only Garza and the victim were alleged to be present for the 1995 sexual assault.
Factor 2: State's Need for the Evidence
As discussed above, defense counsel clarified in voir dire that his case would largely center on interrelated theories of consent and fabrication as well as challenges to M.J.'s credibility. It was thus foreseeable to both parties that the case would come down to whether the jury believed M.J.'s testimony. Indeed, as defense counsel explained in his closing argument:
There is no dispute in this case, the State has brought to you one witness, and no physical evidence, no other witness to corroborate the Complainant's version, no
DNA, no medical exam . . . . This case has one witness and one witness only whose credibility is at issue . . . . [The State is] propping up a case that only starts with one witness and ends with one witness.
M.J. was the only State witness to testify about the charged offense. The testimony of its other witnesses, Womack and C.B., served solely to prove the extraneous offenses. We have previously concluded that the State's need for extraneous-offense evidence "weighs strongly in favor of admission" where without the evidence, its case would "basically come down to" the complainant's word against the defendant's. Robisheaux, 483 S.W.3d at 220 (quoting Gaytan, 331 S.W.3d at 227); see Newton, 301 S.W.3d at 320 (finding that trial court could have reasonably concluded that State's need for evidence was "considerable" because there were no corroborating eyewitnesses or physical evidence, and State had to rebut defensive theory of fabrication). The State's need is also heightened where, as in this case, the defense challenges the complainant's memory and credibility and emphasizes her drug use. See Price v. State, 594 S.W.3d 674, 681 (Tex. App.-Texarkana 2019, no pet.) ("Because there was no biological evidence and there were no third-party eyewitness to the alleged incidents, and because Price challenged Tammy's credibility and memory, the State had a considerable need for the evidence."); Marc v. State, 166 S.W.3d 767, 776 (Tex. App.-Fort Worth 2005, pet. ref'd) ("[Complainant]'s criminal history and drug use did not make her the ideal witness. For that same reason, the State had a strong need for the evidence.").
While C.B.'s testimony lessened the State's need for evidence of the 1997 conviction, it did so only modestly. See Montgomery, 810 S.W.2d at 390 (op. on reh'g) (stating that "[w]hen the proponent has other compelling or undisputed evidence to establish the proposition or fact that the extraneous misconduct goes to prove, the misconduct evidence will weigh far less than it otherwise might in the probative-versus-prejudicial balance"). As Garza emphasized at trial, there were concerns with C.B.'s allegation, which was disclosed to the State for the first time shortly before proceedings began. Her testimony concerned an unindicted offense, which she had not reported to police or to certain family members. Many of the defense's witnesses devoted significant portions of their testimony to attempts to undermine the credibility of her allegation. And although the close similarities between C.B.'s account and the charged offense made the account more probative, defense counsel in closing argued that the similarities likely resulted from M.J.'s discussing the substance of her own allegation with C.B.
Accordingly, the second factor weighs strongly in favor of admission.
Factor 3: Tendency to Suggest Decision on an Improper Basis
It is possible that evidence of Garza's conviction could have suggested a decision on an improper basis due to the relative severity of the offense underlying the conviction as compared with the charged offense. See Gigliobianco, 210 S.W.3d at 641 (stating that evidence might encourage decision on improper basis if it arouses jury's sympathy or hostility "without regard to the logical probative force of the evidence"). However, "Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence is merely prejudicial." Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013).
Moreover, any improper influence of the evidence was mitigated by the trial court's limiting instruction that the evidence could only be considered for non-propensity purposes as well as by both sides' closing arguments. See Taylor v. State, 332 S.W.3d 483, 492 (Tex. Crim. App. 2011) (noting that jury is presumed to have understood and followed trial court's jury-charge instructions absent evidence to the contrary); Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994) (explaining that "[a] manner of lessening the prejudice from the extraneous offense is to give a limiting instruction to the jury"); Gaytan, 331 S.W.3d at 228 (finding that prejudicial effect of testimony was lessened because trial court "did what it could to mitigate [its] improper influence"). Much of defense counsel's closing addressed proper use of the extraneous offenses, including cautioning the jury that "the instruction the Judge gave you tells you very clearly what you can use those other priors for. You can't use them for the purpose of saying he's guilty today because he was guilty before." The State likewise explained:
[T]he law doesn't say, just because he committed other offenses, therefore, he's automatically guilty of [M.J.]. No, that's not what the law says, and I'm not asking you to do that.
The law says, first, if you believe that I've proven beyond a reasonable doubt those prior bad acts, then you may use it, and only use it for certain categories. So, please understand, I am not trumping in prior victims just to say once a sexual predator, always a sexual predator.
There is no evidence in the record of the extent to which the jury considered the evidence of Garza's conviction. Aside from the State's asking Ana if Garza had told her that he was charged with and convicted of "raping a woman five to six times" and her testimony that he "told [her] about the incident" and that "[the victim] was a woman that he lived with, his girlfriend," no witness testified about the facts underlying the conviction.
For these reasons, the third factor is neutral or weighs only slightly in favor of exclusion.
Factor 4: Tendency to Confuse or Distract the Jury
Confusion of the issues "refers to a tendency to confuse or distract the jury from the main issues in the case." Gigliobianco, 210 S.W.3d at 641 (citing S. Goode, et al., Texas Practice: Guide to the Texas Rules of Evidence § 403.2 at 165 (3d ed. 2002)). The evidence regarding the conviction was straightforward and relevant to proving intent as well as rebutting the defense's principal theories. See Tex. R. Evid. 401 (evidence is relevant if it makes material fact more or less probable). In addition, any potential confusion resulting from the evidence was lessened by the trial court's limiting instruction and parties' arguments. This factor therefore weighs in favor of admission.
Factor 5: Tendency to Be Given Undue Weight
This factor concerns "a tendency of an item of evidence to be given undue weight by the jury on other than emotional grounds. For example, 'scientific' evidence might mislead a jury that is not properly equipped to judge the probative force of the evidence." Gigliobianco, 210 S.W.3d at 641 (internal citation omitted); see Gaytan, 331 S.W.3d at 228. Evidence of Garza's conviction was not scientific or technical and pertained to matters including victim credibility that could be easily comprehended by laypeople. See Gaytan, 331 S.W.3d at 228; Deggs, 646 S.W.3d at 927. This factor weighs in favor of admission.
Factor 6: Likelihood that Evidence Will Be Too Time-Consuming or Repetitive
This factor concerns whether "the jury would be distracted from consideration of the charged offense." Mechler, 153 S.W.3d at 441. We consider only time spent developing the evidence and exclude hearings outside the presence of the jury. See Dennis v. State, 178 S.W.3d 172, 181 n.2 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd) ("The potential for unfair prejudice occurs if the State spends an undue amount of time presenting the extraneous offense to the jury."). Here, testimony concerning the conviction constituted approximately 25 pages of an approximately 384-page transcript of the guilt-innocence phase of trial. See Robisheaux, 483 S.W.3d at 221 (concluding that evidence did not consume "inordinate amount of time" where testimony was eight pages of record that was "hundreds of pages long"); Gaytan, 331 S.W.3d at 228 (describing testimony that occupied 13 pages of more than 200-page transcript as "relatively brief"); cf. Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996) (factor weighed in favor of admission where extraneous-offense testimony amounted to "less than one-fifth" of trial testimony). The evidence was not repetitive. Thus, this factor weighs in favor of admission.
Summation
One factor weighs at most somewhat in favor of exclusion; one is neutral or weighs only slightly in favor of exclusion; one weighs strongly in favor of admission; and three weigh in favor of admission. Given our standard of review, the presumption in favor of admissibility, and the factors discussed above, we cannot conclude that the trial court abused its discretion by overruling Garza's Rule 403 objection. See Hammer, 296 S.W.3d at 568.
C. Scope of evidence
Lastly, Garza agues that the trial court erred by admitting evidence of the conviction that "far exceeded the scope of what the State previously argued it intended to introduce." He also asserts that the evidence was "cumulative to the point of being absolutely duplicative" and "contained numerous items of evidence that had not been reviewed [] as required by law."
As discussed above, evidence of the conviction was highly probative to proving intent and rebutting the defensive theories of fabrication and consent. See Tex.R Evid 401 We likewise determined in our preceding Rule 403 analysis that the evidence was not overly time-consuming or duplicative The opinions cited by Garza in arguing this sub-issue-Wheeler and Montgomery-exclusively concern cumulativeness as a factor to be considered under the rule See 67 S.W.3d at 889 (Keller, J, concurring); 810 S.W.2d at 377.
Nevertheless, although a number of documents concerning the conviction were admitted, their substance was not duplicative-particularly as regards the facts of the offense- nor was the evidence "needlessly cumulative." See Tex. R. Evid. 403. To the extent that certain facts were repeated, it does not affect our determination regarding the trial court's ruling on Garza's Rule 403 objection.
With regard to the specific documents admitted, he appears to argue that while the State initially referred only to a judgment form and booking sheet at the evidentiary hearing, additional documents concerning the conviction were later offered, and admitted, into evidence. First, we note that he did not object at trial to the scope of the documents or to the admission of particular documents and has therefore not preserved the issue for appeal. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a) (providing that, to claim error in ruling to admit evidence, party must timely object and state specific ground, unless it was apparent from context); Harnett v. State, 38 S.W.3d 650, 661 (Tex. App.-Austin 2000, pet. ref'd) ("Unless the complaint on appeal comports with the trial objection, nothing is preserved for review."). Second, even were the issue preserved, he has not provided us with any authority circumscribing the State's right to offer additional relevant evidence where it identified only certain evidence at first.
His argument that the trial court did not review the evidence "as required by law" was similarly not preserved, and he has provided no authority in support of the conclusory assertion on appeal. See Tex. R. App. P. 33.1(a). Prior to the court's ruling, a hearing was held on the evidence's admissibility at which both sides argued. The trial court found that the evidence was relevant and admissible under both Rules 403 and 404(b). Insomuch as Garza now argues that further action was required by the court, we find the argument to be without merit.
For these reasons, we conclude that the trial court did not abuse its discretion by admitting evidence of his 1997 conviction. Accordingly, we overrule his first issue.
II. Admissibility of C.B.'s Testimony
In his second issue, Garza contends that the trial court erred by admitting C.B.'s testimony. Specifically, he cites Webb v. State to argue that the testimony was inadmissible under Rule 404(b). See 36 S.W.3d 164, 180-81 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). He also argues that the trial court abused its discretion because it "did not go through any sort of analysis to determine the threshold question of relevance correctly, nor . . . conduct any Rule 403 balancing test in determining admissibility."
First, with respect to the testimony's relevance and admissibility under Rule 404(b), we determined above that Garza raised the defensive theories of consent, fabrication, and lack of opportunity during voir dire and his cross-examination of M.J. C.B.'s testimony describing a nearly identical sexual assault allegedly committed by Garza is therefore highly relevant and probative for purposes of rebutting those theories. As with his 1997 conviction, testimony that Garza digitally penetrated the vagina of a young woman sleeping on his living room couch and laughed-while Ana and his brother were present in the home-serves to make the defense's theories less likely. Indeed, the offenses were so similar that defense counsel during closing argument insinuated that the extraneous offense must be a fabrication:
And on the month we're going to go to trial, all of a sudden her aunt says, oh, by the way, the same thing happened to me. That's either a coincidence or that's very suspicious.
[I]t's coming at the 11th hour, it's almost identical in terms of the facts that's being committed . . . . And it wasn't just similar in the manner in which it occurred anywhere. She even said the same thing in terms of what Mr. Garza was doing. Oh, he smiled at me, or smirked. One or the other, because they both had that same factor at the end, he smiled or smirked. They can't be that similar, it can't be the exact same situation, unless it was orchestrated, unless it was prepared, unless it was discussed prior to coming into Court.
Webb, the case cited by Garza, is readily distinguishable. In that case, the State offered extraneous-offense testimony to rebut a purported defensive theory that the complainant "was mistaken or unsure about the events that occurred because of her high level of intoxication." Id. at 180. The trial court admitted the testimony for the purpose of showing the defendant's modus operandi. Id. The court of appeals, however, found that the trial court had abused its discretion by admitting the testimony because "there was no dispute as to identity, motive, intent or any of the other exceptions listed in rule 404(b)," and the testimony could only serve to show propensity. Id. at 180-81. By contrast, C.B.'s testimony directly rebutted Garza's defensive theories and was admissible under Rule 404(b) for that purpose. See Williams, 301 S.W.3d at 687; DeLeon, 77 S.W.3d at 313; Tex. R. Evid. 404(b).
Second, as discussed above, a trial judge is not required to conduct a Rule 403 analysis on the record. Mechler, 153 S.W.3d at 444 n.8. When the trial court overrules a Rule 403 objection, we assume that it has applied a balancing test and determined the evidence to be admissible. See Hitt, 53 S.W.3d at 706.
During the hearing on the admissibility of C.B.'s testimony, defense counsel argued:
[T]his is also a different kind of offense. This is a child sexual abuse case, not an adult. We have a remoteness of time argument that's different, because instead of 1997, it's even, I don't know, 10 or more years before that. And to hear counsel's recitation of her recollection or her notes of it, it almost sounded like a horseplay type of situation, where teenagers are pinching and poking and doing that sort of thing.
Following C.B.'s testimony at the hearing, the State analyzed the proffered evidence under four of the Gigliobianco factors, and defense counsel again challenged its inherent probative value. The trial court stated that it would allow the evidence, thereby implicitly overruling Garza's Rule 403 objection. See Jones v. State, 111 S.W.3d 600, 606 (Tex. App.-Dallas 2003, pet. ref'd) (concluding that admission of objected-to evidence implicitly overrules the objection); Maibauer v. State, 968 S.W.2d 502, 505 (Tex. App.-Waco 1998, pet. ref'd) (finding trial court implicitly overruled objection by admitting evidence); see also Miller v. State, 83 S.W.3d 308, 319 (Tex. App.-Austin 2002, pet. ref'd) (finding that trial court's ruling may be implied when court's actions or statements "unquestionably indicate a ruling"). Thus, we assume that the court conducted an off-record Rule 403 analysis and found the evidence to be admissible.
Accordingly, the trial court did not abuse its discretion by admitting C.B.'s testimony. We overrule Garza's second issue.
III. Contemporaneous Limiting Instruction
In his third issue, Garza contends that the trial court erred by failing to provide the jury with a limiting instruction "at the time evidence of extraneous conduct was admitted." Citing Rule of Evidence 105(a) and the Court of Criminal Appeals' decision in Delgado v. State, he argues that "[t]he trial court is required to give a limiting instruction to the jury at the time that extraneous-offense evidence is offered." See 235 S.W.3d 244, 251 (Tex. Crim. App. 2007); Tex. R. Evid. 105(a). It is unclear whether his issue concerns the evidence of his 1997 conviction or C.B.'s testimony. Liberally construing his brief, we will address both.
Rule of Evidence 105 provides in relevant part that if a trial court admits evidence that is admissible for one purpose but not another, "the court, on request, must restrict the evidence to its proper scope and instruct the jury accordingly." Tex. R. Evid. 105(a). A party may only claim error for failure to provide a limiting instruction on appeal if it requested that the court provide one at trial. See R. 105(b). The Court of Criminal Appeals summarized the trial court's responsibilities in Delgado:
[I]f a defendant does not request a limiting instruction under Rule 105 at the time that evidence is admitted, then the trial judge has no obligation to limit the use of that evidence later in the jury charge. This doctrine is a sensible one because otherwise a jury might sit through most of a trial under the mistaken belief that certain evidence is admissible for all purposes when, in fact, it is not. Once evidence has been admitted without a limiting instruction, it is part of the general evidence and may be used for all purposes . . . . [A] limiting instruction concerning the use of extraneous offense evidence should be requested, and given, in the guilt-stage jury charge only if the defendant requested a limiting instruction at the time the evidence was first admitted.Delgado, 235 S.W.3d at 251; see Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008) ("A failure to request a limiting instruction at the time evidence is presented renders the evidence admissible for all purposes and relieves the trial judge of any obligation to include a limiting instruction in the jury charge."); Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001) ("Because appellant did not request a limiting instruction at the first opportunity, the evidence was admitted for all purposes."); Harmel v. State, 597 S.W.3d 943, 961 (Tex. App.-Austin 2020, no pet.) ("[E]ven when a Rule 404(b) limiting instruction would be proper to give, the trial court has 'no duty to include one in the jury charge for the guilt phase [when] appellant fail[s] to request one at the time the evidence was offered.'" (quoting Delgado, 235 S.W.3d at 254)).
During the evidentiary hearing for Garza's 1997 conviction, the trial court initially stated that it would allow the State to "get into the prior conviction" but would "anticipate having them having a limiting instruction in the jury charge that indicates what that is being used to rebut or to address." Defense counsel asked for which purposes the evidence would be limited, and a lengthy discussion between the parties ensued. Ultimately, the following exchange clarified the court's ruling:
DEFENSE COUNSEL: And so, Judge, so I understand the Court's ruling, you're going to allow it with the limiting instruction that they can use it to rebut fabrication, basically?
THE COURT: And lack of opportunity. But not consent and not intent and knowledge, with limiting instructions in the jury charge as to its purpose.
THE DEFENSE: I'm sure the record is clear, Judge. But just to make sure it is clear, I'm not asking for clarification because I agree, I still object -
THE COURT: I understand.
DEFENSE COUNSEL: - but I understand.(emphasis added).
Defense counsel did not request-nor did the trial court provide-a limiting instruction at the time the conviction evidence was offered or admitted. An instruction limiting the purposes for which the jury could consider the evidence was, however, included in the jury charge.
Similarly, during the evidentiary hearing for C.B.'s testimony, defense counsel, addressing the trial judge, stated, "I assume you're going to give the same limiting instructions and all the other - and we'll get there when we get to the jury charge, I'm sure." The trial court responded, "Yes. And we will do the limiting instruction." Defense counsel did not request a limiting instruction at the time C.B. testified, and none was given.
Because Garza did not request a limiting instruction when the conviction evidence or testimony was admitted or presented, the extraneous-offense evidence in this case was admitted for all purposes, and the trial court had no obligation to provide an instruction sua sponte. See Williams, 273 S.W.3d at 230; Delgado, 235 S.W.3d at 251; Hammock, 46 S.W.3d at 895; see also Pugh v. State, 639 S.W.3d 72, 98 (Tex. Crim. App. 2022) ("[T]he rule regarding limiting instructions also places the burden upon the parties to request an instruction and not the trial court to give one. Consequently, we reject Appellant's argument that trial courts must sua sponte instruct the jury on the nature of the demonstrative exhibit at the time it is admitted or displayed."). We therefore overrule his third issue.
IV. Jury-Charge Instruction
In his fourth issue, Garza contends that the trial court erred by instructing the jury in the charge that it could "consider the evidence for other purposes not earlier approved of by the trial court." The trial court ruled that evidence of the 1997 conviction was admissible to rebut defensive theories of fabrication and lack of opportunity "[b]ut not consent and not intent and knowledge." It ruled that C.B.'s testimony was admissible "as to the issues of fabrication, lack of opportunity, intent and knowledge, but not as to motive." The jury charge, in contrast, instructed the jury only:
The defendant is on trial solely for the charges contained in the indictment. In reference to evidence, if any, that the defendant has previously participated in other transactions or acts, other than that which is charged in the indictment in this case, you are instructed that you cannot consider such other transactions or acts, if any, for any purpose unless you find and believe beyond a reasonable doubt that the defendant participated in such transactions or committed such acts, if any; and even then you may only consider the same for the purpose of establishing intent or knowledge or to rebut the defensive theory of fabrication or lack of opportunity.(emphasis added). Thus, Garza appears to argue that the instruction expanded the purposes for which the jury could consider evidence of the 1997 conviction by allowing the jury to consider it "for the purpose of establishing intent or knowledge."
Because he did not object to inclusion of the instruction at trial, we will not reverse for jury-charge error unless the record shows "egregious harm." Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)); see also Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016) (explaining that degree of harm required for reversal depends on whether jury charge error was preserved in trial court). "Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory." Marshall, 479 S.W.3d at 843; see Arteaga v. State, 521 S.W.3d 329, 338 (Tex. Crim. App. 2017); Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015).
As discussed above, Garza failed to request timely limiting instructions for the extraneous-offense evidence, and both the conviction evidence and C.B.'s testimony were admitted for all purposes. See Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994), abrogated on other grounds by Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001) ("[O]nce evidence is received without a proper limiting instruction, it becomes part of the general evidence in the case and may be used as proof to the full extent of its rational persuasive power."). The trial court was therefore relieved of "any obligation to include a limiting instruction in the jury charge." Williams, 273 S.W.3d at 230 (citing Hammock, 46 S.W.3d at 892-95).
Moreover, because the evidence was admitted for all purposes, an instruction that the jury could only consider it for certain limited purposes under Rule 404(b) could only have helped Garza. Accordingly, to the extent that the trial court's inclusion of the instruction was error, we cannot say that it egregiously harmed him. See Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013) ("[Egregious harm] is a difficult standard to meet and requires a showing that the defendants were deprived of a fair and impartial trial."). We overrule his fourth issue.
V. Legal Sufficiency
In his fifth issue, Garza contends that the "[t]he admissible evidence" was insufficient to support his conviction for sexual assault. He argues that "[a]bsent the character conformity evidence that was wrongfully admitted in this case, it is unlikely that any rational trier of fact could have concluded the State proved each element of the offense beyond a reasonable doubt."
Due process requires that the State prove every element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 313-14 (1979); Lang v. State, 561 S.W.3d 174, 179 (Tex. Crim. App. 2018). When reviewing the legal sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Braughton v. State, 569 S.W.3d 592, 607-08 (Tex. Crim. App. 2018). We assume that the jury resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 319; see Braughton, 569 S.W.3d at 608. Our "role on appeal is restricted to guarding against the rare occurrence when the factfinder does not act rationally." Arroyo v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018); Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016).
The jury is the sole judge of the weight and credibility of the evidence. See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Thus, when performing an evidentiary-sufficiency review, we "may not reevaluate the weight and credibility of the evidence" and substitute our judgment for that of the factfinder. Braughton, 569 S.W.3d at 608; Arroyo, 559 S.W.3d at 487; see Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (stating that reviewing court "must not usurp" jury's role by "substituting its own judgment for that of the jury"). When the record supports conflicting reasonable inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that resolution. Zuniga, 551 S.W.3d at 733.
Although Garza argues that we should not consider C.B.'s testimony or evidence of his 1997 conviction in conducting our sufficiency analysis, we concluded above that his challenges to the evidence's admissibility are meritless. Moreover, when determining legal sufficiency, we "must consider all evidence which the jury was permitted, whether rightly or wrongly, to consider." Curlee v. State, 620 S.W.3d 767, 785 (Tex. Crim. App. 2021) (quoting Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988)); see Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004); Jessop v. State, 368 S.W.3d 653, 663 (Tex. App.-Austin 2012, no pet.) ("[W]e must consider all the evidence in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense.").
Regardless, the extraneous-offense evidence is unnecessary to a determination that evidence of Garza's guilt was legally sufficient. M.J. testified that he insisted on her changing into his underwear and allowing him to massage her with oils, despite her protestations and her crying during the massage. She testified that when she, Ana, and he went into the living room after the massage, she could hear him and Ana whispering about her and heard Ana saying, "[N]o, don't." M.J. testified that she fell asleep and awoke to his fingers "inside of [her]," that she told him to stop and tried to force him off, and that after the assault he laughed at her. She testified that she had not mentioned wanting to have sexual contact with him, had not given him permission to penetrate her vagina digitally, and could not have done so while asleep.
To the extent that Ana's testimony or other evidence contradicted M.J.'s testimony, we presume that the jury found M.J. to be credible and resolved the contradiction in a manner favoring the guilty verdict. See Zuniga, 551 S.W.3d at 733; Jackson, 443 U.S. at 319; Braughton, 569 S.W.3d at 608. Thus, viewing the evidence in the light most favorable to that verdict, we conclude that a rational juror could have found the essential elements of the offense proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Braughton, 569 S.W.3d at 607-08. We overrule Garza's fifth issue.
CONCLUSION
Having overruled each of Garza's issues, we affirm the trial court's judgment of conviction.
Affirmed