Carlos David Rodriguez v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________
NO. 09-22-00116-CR
________________

CARLOS DAVID RODRIGUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 19-04-05648-CR
________________________________________________________________________

MEMORANDUM OPINION

Carlos David Rodriguez appeals his conviction for aggravated sexual assault

of a child, J.G. (Jane). 1 See Tex. Penal Code 22.021(a)(1)(B). Following a jury trial,

Rodriguez was found guilty of aggravated sexual assault of a child and sentenced to

1
We refer to the victim and her family members by pseudonyms to conceal
their identity. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to
be treated with fairness and with respect for the victim’s dignity and privacy
throughout the criminal justice process[.]”).
1
twenty years imprisonment within the Texas Department of Criminal Justice. In

seven issues on appeal, Rodriguez complains about the sufficiency of the evidence

to support his conviction, including alleging a material variance in the indictment

and evidence at trial; limitation of his voir dire; exclusion of evidence of the victim’s

prior extraneous allegations against another person; improper comments during

closing argument; prosecutorial misconduct; and ineffective assistance of counsel.

For the reasons explained below, we affirm the trial court’s judgment.

BACKGROUND

Rodriguez is Jane’s stepfather and biological father of Jane’s two younger

siblings. Norma Carmona testified that she works at Children’s Safe Harbor, a

Children’s Advocacy Center. Carmona interviewed Jane in February 2019 when she

was fourteen years old. She described Jane’s demeanor during the interview as

“tearful” stating that “[Jane] started off crying in the beginning of the interview and

continued to cry as the interview went on to the end.” Carmona detailed her process

in interviewing Jane, determining that Jane knows the difference between the truth

and a lie, and explained that Jane told her “I got raped.” According to Carmona, Jane

told her that she was raped by her stepfather when she was ten years old. Jane

identified Rodriguez as her assailant, telling Carmona that Rodriguez anally

penetrated her with his penis in her bedroom after picking her up from school. Jane

described the assault as painful, and she stated that when she went to the bathroom

2
after the assault, she bled and experienced pain. Jane told Carmona that she was

fearful of Rodriguez. During cross-examination, Carmona stated that Jane told her

that when Rodriguez picked her up from school that day, she had received a failing

report card in music.

Jane’s paternal grandmother (“Grandmother”) described Jane as her “little

girl” and a happy child. In January 2019, Jane approached Grandmother, trembling

and scared, and told Grandmother that Rodriguez raped her. The next day,

Grandmother told Jane’s mother (“Mother”) about the abuse, and Mother took Jane

to the police to make a report. Looking back, Grandmother stated that she noticed a

change in Jane’s demeanor, testifying that “she was not the same [Jane][,]” and that

she was unhappy. She also testified that Jane regressed to bed wetting while Mother

and Rodriguez were living together. According to Grandmother, Jane told her that

she reported the abuse to the police, “but they did not believe her.”

Mother testified that she has four children. She described her family’s history,

including her previous and current relationships, the family’s previous residences,

and Jane’s schools. This oral history was compiled into a timeline and admitted by

the State. Mother testified that Jane was a “very quiet . . . normal kid[]” growing up,

helpful and did not cause trouble. Mother described Jane’s and Rodriguez’s

relationship as “rough[,]” stating he was a strict disciplinarian to Jane. “We had a

very rough relationship, and for some reason, he had -- I don’t know -- something

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towards [Jane] because he was different with her than my other child.” According to

Mother, Rodriguez had “problems” if Grandmother or Jane’s biological father came

by their house, so to avoid conflict she would not let Jane and her sister go to

Grandmother’s house. She denied that Grandmother tried to get custody of Jane.

Looking back, Mother observed Jane’s behavior change, including bed wetting.

After Mother and Rodriguez separated, Jane did not talk about Rodriguez.

Mother testified that her oldest daughter told her about the assault the day after

Jane told Grandmother. Mother was in “shock[,]” and Jane and Mother agreed to go

to the police to report the abuse. Mother said it was difficult for Jane to talk about

the assault because she was embarrassed, and it remains difficult for Jane to discuss

it. Mother testified that after Jane’s outcry, Jane exhibited a “relief . . . that now she

told us[.]”

Jane, who was sixteen years old at the time of trial, testified she has three

siblings. She testified about her living arrangements when Rodriguez and Mother

were a couple, and that she remembered Rodriguez as being a disciplinarian in their

home. Jane denied calling the police to report Rodriguez before her outcry. Jane

testified she was “scared” when she told Grandmother about the sexual assault,

because Rodriguez threatened to hurt her or Mother if she told anyone. Jane became

concerned when her cousin, who had a boyfriend, told her she was going to visit her

boyfriend. She believed that her cousin might be sexually assaulted by the boyfriend

4
like she was by Rodriguez. Jane decided to tell her Grandmother about being

sexually assaulted by Rodriguez because she thought that Grandmother would

intervene to help her cousin. According to Jane, she cried when she told

Grandmother that Rodriguez raped her. After she told Grandmother and went to the

police, she felt “good, like, that finally somebody knew.” She testified it was “scary”

and “difficult” to speak to Carmona at Safe Harbor, because it was the first time she

spoke in detail about the assault.

Jane testified she was eight years old when Rodriguez assaulted her after he

picked her and her younger sister up from elementary school. Rodriguez dropped

her sister off at his mother’s home before taking Jane home. According to Jane,

Rodriguez was “mad” that afternoon because of her failing grades in school. Jane

and Rodriguez were home alone, when Rodriguez entered Jane’s bedroom, hit Jane

with a shoe, and took off her shorts. Jane testified Rodriguez sexually assaulted her

by touching his penis to her anus, causing her butt to “hurt[,]” and then he put his

penis into her vagina. Jane denied Rodriguez put his penis into her anus. After the

assault, Jane was sore, and had blood in her urine for about a week. Jane testified

that Rodriguez stopped the sexual assault when someone knocked on the door. Jane

did not tell Mother that night because of Rodriguez’s threats. Jane identified

Rodriguez as her assailant in court. During cross-examination, Jane agreed that she

told someone nine months before the outcry that she was not sexually assaulted.

5
Sharon Record testified that she is a pediatric nurse practitioner and a Sexual

Assault Nurse Examiner (“SANE”) employed with the Division of Public Health

Pediatrics at Texas Children’s Hospital. She described both her educational and

professional background and how to perform a SANE examination on a patient after

an outcry of sexual assault. Record stated that she performed a SANE examination

on Jane, who was thirteen years old. The medical records of Jane’s examination were

admitted at trial. According to Record, Jane told her that she was at the examination

because “I got raped[.]” Jane described rape as “[a] guy’s penis goes inside my

vagina or butt.” Jane told Record that Rodriguez had “put his penis into my butt[,]”

when she was “around 10 [years old].” When asked if Rodriguez had “anything

come out of his penis[,]” or if he put his “penis anywhere else than your butt[,]” Jane

responded that she did not remember. Record testified that it may be difficult for an

eight-year-old to distinguish if a penis went into their butt or vagina, as “[m]ost 8-

year-olds would know what a butt is because they poop, right, but an 8-year-old may

not know what a vagina really is.” Jane told Record that after the assault she

experienced pain “in my stomach and some in my vagina and my butt[,]” including

bleeding when she urinated. Jane denied any other assaults by Rodriguez. Record

testified that given the biological resiliency of female genitalia it was not uncommon

to find no injuries with a delayed reporting of an assault. Record stated that although

6
she found no evidence of penetration during her exam, that does not mean Jane was

not penetrated when she was younger.

Christi Balkovec testified that she works at Children’s Safe Harbor as a

clinical mental health professional. She described her educational and professional

background and stated that she counseled Jane after her outcry in 2019 and treated

her for eighteen sessions. During the sessions, Jane told Balkovec she experienced

both sexual and physical assault and identified Rodriguez as her assailant. Balkovec

testified that when Jane started her sessions, Jane “struggled with sharing feelings[,]”

was “very shy, very quiet[,]” but “willing to participate[.]” According to Balkovec,

Jane got more comfortable as her sessions continued, but it took “11[] or 12[]

session[s]” for it to become easier for Jane to discuss the assault. Balkovec diagnosed

Jane with posttraumatic stress disorder because Jane reported symptoms of sleep

disturbances, ongoing headaches, hypervigilance and anxiety, including fears about

her safety, flashbacks, intrusive memories, and aggression.

The defense called three witnesses including Rodriguez. Rodriguez denied

sexually assaulting Jane and he said he was never alone with Jane in their home. He

testified he spoke to the police without counsel when he first heard about the

allegations. Rodriguez stated that he picked up Jane from school once “in a blue

moon,” and when he did, he took Jane and her sister to his mother’s home. Evidence

was admitted at trial showing Rodriguez had a prior conviction of misdemeanor

7
Class C Assault – family violence against Mother. Rodriguez stated that he and

Mother separated in 2014. He said that he communicated with Jane after the

separation, on “[w]eekends, preferably, when they would be at my mother’s house.”

Rodriguez also admitted to disciplining Jane with a shoe but denied using a coat

hanger or his hands. Rodriguez’s mother testified she considers Jane her

granddaughter, and she never observed Jane acting afraid of Rodriguez. Rodriguez’s

sister testified that she observed Rodriguez and Jane, who never appeared afraid of

Rodriguez.

The jury found Rodriguez guilty and assessed his punishment at twenty years

of incarceration in the Texas Department of Criminal Justice.

ANALYSIS

Sufficiency of the Evidence

We first address Rodriguez’s fifth issue challenging the sufficiency of the

evidence to support the verdict. Rodriguez argues that other than Jane’s testimony

of the assault and the testimony of those who she told about the assault, there is no

physical evidence of the assault. He also points to Jane’s conflicting testimony about

her age when the assault occurred and the sequence of events surrounding the

assault.

When there is a challenge to the sufficiency of the evidence, we review the

evidence in the light most favorable to the verdict to determine whether any rational

8
factfinder could have found the essential elements of the offense beyond a

reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App.

2010) (citing Jackson v. Virginia, 443 U.S. 307 (1979) (concluding the Jackson

standard “is the only standard that a reviewing court should apply” when examining

the sufficiency of the evidence)); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007). We look to all evidence in the record, including admissible and

inadmissible evidence, and direct and circumstantial evidence. Dewberry v. State, 4

S.W.3d 735, 740 (Tex. Crim. App. 1999). The jury is the sole judge of the witnesses’

credibility and weight to be given to their testimony. Tate v. State, 500 S.W.3d 410,

413 (Tex. Crim. App. 2016). Juries may draw multiple reasonable inferences from

facts so long as each inference is supported by the evidence presented at trial. Id.

Accordingly, we are required to defer to the jury’s determinations of weight and

credibility of the witnesses. See Brooks, 323 S.W.3d at 899.

A person commits the offense of aggravated sexual assault of a child if he

intentionally or knowingly causes the penetration of the anus or sexual organ of a

child by any means or causes the anus of a child to contact the mouth, anus, or sexual

organ of another person, including the actor. Tex. Penal Code Ann. §

22.021(a)(1)(B)(i), (iv). “The testimony of a child victim alone is sufficient to

support a conviction for aggravated sexual assault.” Tear v. State, 74 S.W.3d 555,

560 (Tex. App.—Dallas 2002, pet. ref’d) (citing Tex. Code Crim. Proc. Ann. art.

9
38.07(a)); Johnson v. State, 419 S.W.3d 665, 671 (Tex. App.—Houston [1st Dist.]

2013, pet. ref’d.). A child victim’s outcry statement alone can also be sufficient to

support a conviction for aggravated sexual assault. Johnson, 419 S.W.3d at 671; see

also Tex. Code Crim. Proc. Ann. art. 38.072 (Hearsay Statement of Certain Abuse

Victims).

During Jane’s testimony, she recalled her age, the school she attended, and

that the incident occurred after Rodriguez picked her and her sibling up from school.

Jane testified in detail about the assault, identifying the time of day, events leading

to the assault, that it occurred in her bedroom, and that Rodriguez removed both their

clothing. Jane testified Rodriguez touched his penis to her anus and inserted his penis

into her vagina. She stated that she experienced physical pain from the assault and

in the aftermath had blood in her urine for a week. Grandmother testified that in

January 2019, Jane approached her trembling and scared and told her Rodriguez

raped her.

Jane’s testimony alone or Grandmother’s testimony as the outcry witness

alone was legally sufficient to support the jury’s verdict of guilt beyond a reasonable

doubt. See Brooks, 323 S.W.3d at 899; Johnson, 419 S.W.3d at 671; Tear, 74

S.W.3d. at 560. The jury had the benefit of hearing testimony from Jane,

Grandmother, and the SANE, and the jury could have considered their testimony to

be consistent.

10
Although Rodriguez denied the allegations and other witnesses testified Jane

was not fearful of Rodriguez, “[w]hen the record supports conflicting inferences, we

presume that the jury resolved the conflicts in favor of the verdict.” See Tate, 500

S.W.3d at 413. The weight to be given contradictory testimonial evidence is within

the sole province of the jury because it turns on an evaluation of credibility and

demeanor. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997); see

also, e.g., Reed v. State, 991 S.W.2d 354, 360 (Tex. App.—Corpus Christi 1999, pet.

ref’d) (concluding evidence was sufficient to support aggravated sexual assault of a

child conviction based on victim’s testimony even though the testimony was

contradictory). As the factfinder, the jury was entitled to judge the credibility of each

witness, and the jury could accept some portions of a witness’s testimony while

rejecting others. See Hughes v. State, 897 S.W.2d 285, 289-90 (Tex. Crim. App.

1994). In viewing all the evidence in the light most favorable to the verdict, we

conclude the evidence is sufficient, and the jury was rationally justified in finding

Rodriguez guilty beyond a reasonable doubt. See Brooks, 323 S.W.3d at 899. We

overrule Rodriguez’s fifth issue.

Material Variance in the Indictment

In issue six, Rodriguez argues that there is a fatal and material variance

between the allegations in the indictment and the evidence presented at trial.

According to Rodriguez, the amended indictment alleged that he “did then and there

11
intentionally or knowingly cause defendant’s sexual organ to contact or penetrate[]

the anus of [Jane], a child who was then and there younger than 14 years of age,”

but Jane testified Rodriguez penetrated her vagina and not her anus.

A “variance” occurs when there is a discrepancy between the allegations in

the indictment and the proof at trial. See Gollihar v. State, 46 S.W.3d 243, 246 (Tex.

Crim. App. 2001). Texas courts routinely treat the issue of variance as a challenge

to the legal sufficiency of the evidence. Id. at 247. Only a “material” variance, one

that prejudices a defendant’s substantial rights, will make the evidence insufficient.

Ramjattansingh v. State, 548 S.W.3d 540, 547 (Tex. Crim. App. 2018). This

circumstance occurs when the indictment, as written, (1) fails to inform the

defendant of the charge against the defendant sufficiently to allow the defendant to

prepare an adequate defense at trial, or (2) subjects the defendant to the risk of being

prosecuted later for the same crime. Id. The Court of Criminal Appeals has

recognized three categories of variance:

1. a statutory allegation that defines the offense; not subject to a
materiality analysis, or, if it is, is always material; the hypothetically
correct jury charge will always include the statutory allegations in the
indictment;

2. a non-statutory allegation that is descriptive of an element of the
offense that defines or helps define the allowable unit of prosecution;
sometimes material; the hypothetically correct jury charge sometimes
will include the non-statutory allegations in the indictment and
sometimes will not;

12
3. a non-statutory allegation that has nothing to do with the allowable
unit of prosecution; never material; the hypothetically correct jury
charge will never include the non-statutory allegations in the
indictment.

Id. (emphasis omitted). In a sufficiency review, courts tolerate variances if they are

not so great that the proof at trial “shows an entirely different offense” than what

was alleged in the charging instrument. Id.

The amended indictment alleged in addition to penetration, that Rodriguez

intentionally or knowingly caused his sexual organ to contact or penetrate Jane’s

anus. A person commits the offense of aggravated sexual assault of a child if he

intentionally or knowingly causes the anus of a child to contact the sexual organ of

another person, including the actor. Tex. Penal Code Ann. § 22.021(a)(1)(B)(iv).

The record shows Jane testified Rodriguez sexually assaulted her by touching his

penis to her anus, causing her butt to “hurt[,]” and putting his penis into her vagina.

Based on this record, we conclude there is no variance between the allegations in the

indictment and the proof at trial. See Gollihar, 46 S.W.3d at 246. We overrule issue

six.

Limitation of Voir Dire

In issue seven, Rodriguez argues that the trial court erred when it limited his

examination of potential jurors during voir dire. Rodriguez contends that the trial

court erred by sustaining the State’s objection to a question about reasonable doubt

and guilt and innocence.
13
We review a trial court’s limitation of voir dire for abuse of discretion. Fuller

v. State, 363 S.W.3d 583, 585-86 (Tex. Crim. App. 2012). A trial court abuses its

discretion by prohibiting a proper question about a proper area of inquiry. Id. at 585.

A proper question seeks to discover a juror’s views on an issue applicable to the

case. Id. An improper question attempts to commit the juror to a particular verdict

based on particular facts or one that is so vague or broad as to constitute a global

fishing expedition. Id.

The following exchange occurred during voir dire.

[TRIAL DEFENSE ATTORNEY]: Beyond a reasonable doubt -- the
State has a burden to prove my client is guilty beyond a reasonable
doubt. Why not without all doubt? You would have to, like, see it in
person or on video. It wouldn’t be fair to the State. So, it’s without all
doubt. These are all the burden of proofs, some of them, that we have
in our Sorters Mill. You can get different things through the evidence,
but the at tippy-top, you see beyond a reasonable doubt. That’s the
highest burden we have in our Sorters Mill. So, the next -- the big one
is preponderance of the evidence. That’s in civil cases. I can take
millions of dollars from you, all your money, if I prove more likely than
not in my accusation. It’s a little more complicated than that, but 51
percent to take away all of you[r] wealth, everything you have done.
Clear and convincing evidence in order for the State to take away your
parental rights. Above clear and convincing is beyond a reasonable
doubt. That’s because the State can take away your freedom. I know a
lot of people might think your parental rights are more important than
your freedom, but the State says that you have to prove beyond a
reasonable doubt to take away liberties, our highest burden. So, what is
beyond a reasonable doubt? That’s hard to define. I can’t define it, but
what is -- so, you have two options. It’s either guilty or not guilty.
Guilty means beyond a reasonable doubt. Not guilty means not, right?
Not guilty is the default. Not guilty doesn’t mean my client is innocent.
Not guilty doesn’t mean you are calling the complainant a liar. Not
guilty means you have a reasonable doubt, a hesitation to pull the lever
14
to convict. I like to think of the parking lot. When I leave the park
garage and I’m walking towards the elevators and there’s a nagging
voice in my head, Did you lock the doors? Yes. I always lock the doors.
I turn to my fiance, Did I lock the doors? Yes, Trevor. You always lock
the doors. I turn and walk to the car and I hear the horn and Yes, I locked
the doors. That was a reasonable doubt I had even though I was
convinced I locked the doors. Reasonable doubt can be unanswered
questions. It can be lack of evidence, conflicts in the evidence.
Whatever it is, it’s each and individual to all of you. You can all have
different reasonable doubts in the jury box and still find the person not
guilty. If I am convinced that the defendant is guilty of aggravated
sexual assault of a child, but I have a reasonable doubt, then I will still
find him guilty.

[…]

VENIREPERSON: Two -- can you repeat the question?

[TRIAL DEFENSE ATTORNEY]: Yes, sir. If I’m convinced the
defendant is guilty of aggravated sexual assault of a child, but I have a
reasonable doubt, then I will still find him guilty.

THE COURT: [Trial Defense Attorney,] this particular statement, not
a question -- I believe “I am convinced” versus having a “reasonable
doubt,” they are contradicting to each other.

[TRIAL DEFENSE ATTORNEY]: The burden is clear and convinced.

THE COURT: That’s not the standard you are using in this scenario.
So, I will ask you to rephrase the question for purposes of this scaled
question.

VENIREPERSON: Yeah, it’s not making sense.

[TRIAL DEFENSE ATTORNEY]: So just to restart, if you are clearly
and convinced -- if there’s evidence that clearly convinces you that
someone is guilty of aggravated assault, but you still have a reasonable
doubt -- is that not fair?

VENIREPERSON: How can I have a reasonable doubt if --
15
[TRIAL DEFENSE ATTORNEY]: It’s a higher standard than that. The
lower is clear and convincing evidence.

VENIREPERSON: If you think they are guilty, they are guilty.

[TRIAL DEFENSE ATTORNEY]: That’s not the way our Sorters Mill
works unfortunately. Our Sorters Mill is set up for guilty people to be
found not guilty. I mean, it’s going to happen. Judge, if someone is
convinced that the defendant is guilty, but have a reasonable doubt, they
have to find him not guilty.

THE COURT: [Trial Defense Attorney], I think you are hearing back
from the panel that they are confused as to the question, and I think in
fairness to the panel of which you are asking this question, your intent
as to -- what I hear is you are comparing the burdens; is that correct?

[TRIAL DEFENSE ATTORNEY]: Yes, Your Honor.

THE COURT: So, if you want to ask that question, feel free to do so,
but as this question reads, you are hearing from this panel that they are
confused as to the question.

[TRIAL DEFENSE ATTORNEY]: Yes, Your Honor. Just to clarify, I
think that’s because it’s such a hard understanding of what beyond a
reasonable doubt means, and I think that’s hard for a person to grasp.

VENIREPERSON: You are making your client sound guilty.

[TRIAL DEFENSE ATTORNEY]: We have clear and convincing
evidence as one burden of proof. What I’m trying to say is that is lower
-- less than required here. We require a higher burden than that. We
require that you be more than convinced by the evidence. I guess the
convincing is the problem with the word, but that’s just the word that
we use, but I will move on.

VENIREPERSON: Can I take my answer back?

[TRIAL DEFENSE ATTORNEY]: So, what I will ask instead is if you
thought -- if you believed that my client was guilty of this offense, but
you still had a reasonable doubt, there was something that gave you,
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Yes, I think he’s guilty. I’m pretty sure he’s guilty, but there’s a
reasonable doubt in my head that he’s not guilty, how would you
answer? Would you find him -- and you would still -- so --

[THE STATE]: Same objection.

THE COURT: What’s the objection?

[THE STATE]: Objection is it’s vague and confusing based on the
reaction of the panel. Furthermore, it attempts to define beyond a
reasonable doubt.

THE COURT: Sustained.

[TRIAL DEFENSE ATTORNEY]: Okay. So, what I’m trying to say to
everyone is our standard -- people who are guilty are going to be found
not guilty, right? There could be a preponderance of the evidence that
they are guilty, but not beyond a reasonable doubt, and you will still
find them not guilty because you have a reasonable doubt. That’s our
standard. All right? Benjamin Franklin believed that it is better for 100
guilty persons to go free in order to prevent one innocent person from
being wrongfully convicted. That’s why we have such a high standard.
Guilty people are going to go free under this standard. Does anybody
have a problem with that?

VENIREPERSON: I do due to the nature of this case. I don’t believe
that we should -- I don’t think it’s okay to let a guilty person go free in
this case.

[TRIAL DEFENSE ATTORNEY]: Yes, Juror. Thank you. Juror 67
brings up a good point. Is anyone going to hold the State to a lesser
burden -- make them not meet their burden beyond a reasonable doubt
-- because of the nature of this case? Anyone else agree with 67?

VENIREPERSON: (Indicating.)

[TRIAL DEFENSE ATTORNEY]: Juror 2?

VENIREPERSON: Yes.

17
[TRIAL DEFENSE ATTORNEY]: Anyone else?

VENIREPERSON: (Indicating.)

[TRIAL DEFENSE ATTORNEY]: 68, 66 and 36 and 5 and 17. That’s
the big issue.

[THE STATE]: Judge, again, I object to that question because it’s
placing a definition on beyond a reasonable doubt and --

[TRIAL DEFENSE ATTORNEY]: There was no definition. I said a
reasonable doubt. I didn’t define what that means.

THE COURT: I sustain the objection and asking counsel to rephrase
the question. I believe that the panel has an understanding that the
standard applied in a criminal case is beyond a reasonable doubt and
that if the State fails to meet proving all the elements beyond a
reasonable doubt, that their verdict shall be not guilty. Are we on the
same page as far as what the law says right now?

[TRIAL DEFENSE ATTORNEY]: That’s the law.

THE COURT: And the panel, you-all have a -- what I have heard, you
have a firm grasp of that. So, the question is -- what I’m hearing, and
[Trial Defense Attorney], please feel free to correct me, but the question
is: Are any of you changing the standard or lowering the burden for the
State on this particular case? Is anyone changing it right now? If you
say, I’m not going to hold the State to their burden, I’m going to lessen
that burden, that’s when your card needs to go up because that’s what
[Trial Defense Attorney] is asking.

[TRIAL DEFENSE ATTORNEY]: Because they are charged --

VENIREPERSON: (Indicating.)

THE COURT: No. 2.

[TRIAL DEFENSE ATTORNEY]: I want to make it clear because
someone is charged with aggravated sexual assault of a child, you are
going to hold the State -- you are going to require a lesser burden, you
18
won’t make them prove to you beyond a reasonable doubt of all the
elements? You will have a lesser burden for the State because of the
nature of the case?

VENIREPERSON: (Indicating.)

[TRIAL DEFENSE ATTORNEY]: 67?
VENIREPERSON: No. I mean, if I believe beyond a reasonable doubt
that they are guilty, then I’m going for that.

[TRIAL DEFENSE ATTORNEY]: But if they don’t meet that burden,
and you have a reasonable doubt, but you are pretty sure they are guilty,
but it’s not to the level of beyond a reasonable doubt, would you still
find my client guilty?

VENIREPERSON: No, but I also don’t really believe what Benjamin
Franklin said. I will go against the others is what I’m saying.

In Fuller, the trial court prohibited defense counsel from asking the members

of the jury panel if they understand that proof beyond a reasonable doubt is the

highest burden and from explaining that “clear and convincing evidence is the type

of burden that might be used when someone is committed to an involuntary health

institution or when someone is trying to terminate someone’s parental rights[,]” and

that beyond a reasonable doubt is “higher than the preponderance of the evidence,

which is just over 50 percent and that’s the kind of burden that might be used in a

civil lawsuit when someone is suing over money.” Id. at 584. During voir dire in

Fuller, defense counsel made no attempt to question the jury regarding the

reasonable-doubt burden and lesser burdens. Id. Finding error by the trial court, the

Court of Criminal Appeals held:

19
[I]nquiry into a prospective juror’s understanding of what proof beyond
a reasonable doubt means constitutes a proper question regardless of
whether the law specifically defines that term. The jury’s ability to
apply the correct standard of proof remains an issue in every criminal
case. If anything, the fact that current case law has come full circle and
once again provides jurors with no definition of reasonable doubt only
heightens the incentive for the parties to test the understanding of the
veniremembers. And it strikes us as particularly apt to inquire whether
a prospective juror understands that proof beyond a reasonable doubt
must at least constitute a more onerous standard of proof than
preponderance of the evidence and clear and convincing evidence. It is
but the flip side of the inquiry that prosecutors engage in routinely
during voir dire, designed to test whether prospective jurors will hold
the State to the inappropriately onerous standard of proof beyond all
doubt. While neither area of inquiry purports to assign a precise
meaning to the term “reasonable doubt”–leaving that for the jurors
themselves to supply, according to their own common-sense
understanding of the words–they do serve to set the lawful parameters
of reasonable doubt and thereby foster the selection of jurors who will
not impose a standard of proof upon the State that they know for sure
to be either too lenient (preponderance or even clear and convincing)
or too burdensome (all doubt).

Id. at 587 (footnote omitted).

In this case, the trial court did not prohibit Rodriguez from inquiring into the

panel’s understanding of the beyond-a-reasonable-doubt burden of proof. While the

trial court prohibited the parties from discussing the definitions of various burdens

and requested that Rodriguez’s counsel rephrase questions the jury found confusing,

the record demonstrates that defense counsel advised the jury that beyond a

reasonable doubt is the highest burden of proof and questioned the panel about the

beyond a reasonable doubt burden and its meaning. This line of questioning allowed

Rodriguez to test veniremembers’ understanding of the beyond a reasonable doubt
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standard and set the lawful parameters of beyond a reasonable doubt to promote the

application of a proper burden of proof by the jury. See id; see also Hernandez v.

State, 390 S.W.3d 310, 315 (Tex. Crim. App. 2012) (“A trial court retains discretion

to restrict voir dire questions that are confusing, misleading, vague and broad, or are

improper commitment questions.”). Under the circumstances of this case, we

conclude that the trial court did not abuse its discretion by limiting Rodriguez’s voir

dire questions. We overrule issue seven.

Exclusion of Evidence of Victim’s Prior Extraneous Allegations

In his first issue, Rodriguez argues that the trial court abused its discretion and

denied him his fundamental right to present a defense by excluding evidence of

Jane’s motivation to lie about the sexual abuse. Rodriguez argues the trial court erred

by not allowing him to question Jane about a prior sexual allegation she reported to

her school officials regarding her sister and Mother’s new boyfriend.

We review a trial court’s decision on the admission or exclusion of evidence

for an abuse of discretion and must uphold the trial court’s ruling if it was “within

the zone of reasonable disagreement.” Wells v. State, 611 S.W.3d 396, 427 (Tex.

Crim. App. 2020); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1991) (op. on reh’g). A trial court abuses its discretion if it acts without reference to

any guiding rules and principles or acts arbitrarily or unreasonably. Rhomer v. State,

569 S.W.3d 664, 669 (Tex. Crim. App. 2019). “As long as the trial court’s ruling is

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within the ‘zone of reasonable disagreement,’ there is no abuse of discretion, and the

trial court’s ruling will be upheld.” De La Paz v. State, 279 S.W.3d 336, 343-44

(Tex. Crim. App. 2009) (quoting Montgomery, 810 S.W.2d at 391). If the trial

court’s decision is correct on any theory of law applicable to the case, we will uphold

the decision. Id. at 344 (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App.

1982)).

Evidence having any tendency to make the existence of any fact of

consequence to the determination of the action more probable or less probable than

it would be without the evidence is relevant. See Tex. R. Evid. 401. Rule 403 permits

a trial court to 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. Rule 403 favors admitting 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) (citation

omitted).

Rodriguez argues that by restricting his rights to conduct the cross-

examination of Jane that he wanted, the trial court significantly undermined defense

counsel’s ability to prove Jane had motivations to lie about the sexual allegation,

specifically that she wanted to stay at Grandmother’s home where the house rules

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were more relaxed. The record shows that defense counsel wanted to question Jane

about a prior inconsistent statement she made where she told “certain people” nine

months before the allegation that she had never been sexually assaulted. Defense

counsel also wanted to question Jane about her statement that she missed school one

day because her sister was raped by Mother’s new boyfriend. The trial court noted

that Rodriguez’s questions concerned two issues, and the trial court allowed defense

counsel to question Jane about her prior inconsistent statement, but not about a CPS

allegation subject to a motion in limine or the rape allegation because it was a

“different perpetrator or victim[.]”

The next day at trial, defense counsel made the following bill of exception

regarding the CPS investigation that the trial court would not allow in for

questioning:

We wanted to enter evidence regarding a prior CPS allegation
investigation that was in March 2018. It was said that [Jane], heard --
overheard that [her sister] was raped by [Mother’s boyfriend], that’s her
mother’s current boyfriend at the time. She made this allegation after
missing school on Saturday and Monday. They asked her Tuesday why
she missed school and gave this excuse or she made the allegation. This
was not a true allegation. [Her sister] denied the allegation. They
interviewed [Mother] and [Mother’s boyfriend]. Both said they were
just friends and didn’t live together. [Ella], the other daughter, [Jane]
and [Jane’s sister], all said that [Mother’s boyfriend] did live there. This
could have led to a possible alternate suspect, [Mother’s boyfriend].
During the timeline, it’s possible [s]he was living with [Mother] and
not Carlos Rodriguez.

[Jane] the complainant, also denied three times, at least, that she was
never sexually abused. She denied to the principal. She denied to the
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CPS worker, Dan Wilber, and there’s reason for us to believe she was
interviewed by Safe Harbor and she denied being sexually abused there,
as well.

The CPS report in [Jane’s] interview also states inconsistent testimony
that we weren’t allowed to impeach on where she states that dad’s
house, they rarely get disciplined and that she’s only allowed to stay
there for two days so she doesn’t get in trouble. This goes to motive and
bias. The accusations of rape are false nine months prior, and it shows
a motive to get out of [Mother]’s house and live in [Grandmother]’s
house.

Furthermore, the CPS investigator, we are not able to get into the full
depth of what she said in that prior interview. We are limited, in this
case, to just what she told the counselor. In that CPS record, she says
parts of the body that were not touched and goes much more into
detailed. We are not able to impeach based on that. I think the face of
the record allows us, under the cases that we cited earlier -- I think it
was Vela -- to establish a public records exception to hearsay and get
into Mr. Wilber’s [CPS’s] record that way. The Defense also
subpoenaed Mr. Wilber and was going to call him to the stand in order
to lay the predicate under business record, if necessary, or public record
in order to get this in.

As noted above, the defense argument was that the defense wanted to show

Jane’s motivation and bias to make false allegations so she could live in

Grandmother’s home with relaxed rules. The record shows that the trial court

allowed Rodriguez to question Jane about living at Grandmother’s home and about

Grandmother’s rules. The trial court also allowed defense counsel to question Jane

about whether she had denied any sexual abuse nine months before her outcry.

Defense counsel challenged Jane’s credibility throughout cross-examination,

including challenging her prior inconsistent statements about the safety of Mother’s

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home. The record demonstrates the trial court allowed Rodriguez to develop

evidence that Jane had reasons that might have led her to make a false outcry.

That said, the trial court did not allow defense counsel to cross-examine Jane

about her outcry concerning her sister’s rape by Mother’s new boyfriend, which was

made several years after Rodriguez moved out of Mother’s home. When defense

counsel approached the bench prior to questioning Jane regarding the previous

allegation about her sister, including the CPS report subject to a motion in limine,

the trial court stated that an accusation involving two other individuals was not

relevant to the current allegations. Concerning defense counsel’s Rule 403 objection,

the trial court found that such evidence, which is not relevant, could possibly tend to

confuse or distract the jury from the main issues, consume an inordinate amount of

time, repeat evidence, or suggest a decision on an improper basis. We cannot say

that the trial court abused its discretion by excluding the questions about an

accusation involving two other individuals and by determining that the admission of

such testimony would confuse the issues and mislead the jury. See Wells, 611

S.W.3d at 427; De La Paz, 279 S.W.3d at 343-44; see also Tex. R. Evid. 401, 403.

We overrule issue one.

Improper Comments During Closing Arguments

In issue two, Rodriguez argues that the trial court improperly commented on

the evidence during closing arguments. Rodriguez contends that the trial court erred

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when it sustained the State’s objection to his closing argument, “and, in doing so,

improperly commented on the evidence.”

Generally, a defendant must make a timely, specific objection to the trial

court’s comments or remarks or he forfeits his complaint on appeal. See Tex. R.

App. P. 33.1(a)(1)(A); Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim. App.

2018). Rodriguez did not object to the trial court’s statement about the motion in

limine during closing arguments. We conclude that Rodriguez failed to preserve this

issue for our review. We overrule issue two.

Prosecutorial Misconduct

In issue three, Rodriguez argues that there were “cumulative instances of

prosecutorial misconduct” that made his trial “fundamentally unfair.” Rodriguez

points to three instances of alleged prosecutorial misconduct by the State: objecting

to the admission of Jane’s report about her sister’s rape; arguing during closing that

Jane had no motive to lie and that defense’s strategies did not pan out; objecting

during closing about defense’s argument being subject to a motion in limine.

Although Rodriguez admits he did not object “to each instance[,]” he argues that the

cumulative effect of the prosecutorial misconduct during the trial amounts to

“deprivation of fundamental fairness and due process of law[.]”

“A due-process, fair-trial objection is required . . . to preserve a complaint on

appeal that the prosecutor engaged in serious and continuing prosecutorial

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misconduct so as to effectively deprive a defendant of due process or a fair trial.”

Mullinax v. State, No. 02-14-00237-CR, 2015 WL 3422531, *1 (Tex. App.—Fort

Worth May 28, 2015, pet. ref’d) (mem. op., not designated for publication) (citing

Clark v. State, 365 S.W.3d 333, 339-40 (Tex. Crim. App. 2012)); see also Taylor v.

State, Nos. 09-16-00303-CR, 09-16-00307-CR, 2018 WL 2224126, **6-7 (Tex.

App.—Beaumont May 16, 2018, pet. ref’d) (mem. op., not designated for

publication). “The cumulative-error doctrine does not apply unless the complained-

of errors have been preserved for appeal and are actually errors.” Schmidt v. State,

612 S.W.3d 359, 372 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (citing

Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999)). Since

Rodriguez failed to preserve error regarding the three instances of alleged

prosecutorial misconduct, we conclude there is no cumulative error or harm. See

Schmidt, 612 S.W.3d at 372 (citing Buntion v. State, 482 S.W.3d 58, 79 (Tex. Crim.

App. 2016)). We overrule issue three.

Ineffective Assistance of Counsel

In issue four, Rodriguez argues that he received ineffective assistance of

counsel because his attorney failed to object to the State’s inaccurate closing

argument. Rodriguez contends that but for his trial attorney’s deficiencies the

outcome of his trial would have been different. He states that his trial attorney failed

to object when the State said during closing arguments that no one ever said Jane

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failed music class, despite Carmona testifying that Jane told her she failed music

class before the assault. According to Rodriguez, this statement is essential to his

defense as it highlights Jane’s “inaccurate/inconsistent” statements, bolstering that

her allegation against him was false. Rodriguez filed a motion for new trial alleging

ineffective assistance of counsel and attached the affidavit of one of his trial

attorneys.

To establish that he received ineffective assistance of counsel, Rodriguez must

show that (1) counsel’s performance fell below an objective standard of

reasonableness and (2) there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different. See Strickland v. Washington,

466 U.S. 668, 687-88, 694 (1984). The party alleging ineffective assistance has the

burden to develop facts and details necessary to support the claim. See Jackson v.

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A party asserting an ineffective-

assistance claim must overcome the “strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance.” Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999) (citations omitted). An appellant’s failure

to make either of the required showings defeats the claim of ineffective assistance.

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

Before a defendant is entitled to a hearing on his motion for new trial alleging

ineffective assistance of counsel, he “must allege sufficient facts from which a trial

28
court could reasonably conclude both that counsel failed to act as a reasonably

competent attorney and that, but for counsel’s failure, there is a reasonable likelihood

that the outcome of his trial would have been different.” Smith v. State, 286 S.W.3d

333, 340-41 (Tex. Crim. App. 2009) (emphasis omitted). The reasonableness of

counsel’s choices generally involves facts that do not appear in the record, so the

record will generally be insufficient to show that counsel’s representation was so

deficient as to meet the first prong of the Strickland test. Id. at 341 (quoting Mitchell

v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002)). Therefore, we must determine

whether defendant’s motion for new trial and supporting affidavit “allege facts that

would reasonably show that his counsel’s representation fell below the standard of

professional norms and that there is a reasonable probability that, but for his

counsel’s conduct, the result of the proceeding would have been different.” Id.

(citing Strickland, 466 U.S. at 687).

In his motion for new trial, Rodriguez alleged that trial counsel was ineffective

by failing to object to a false statement made by the State during closing arguments.

Rodriguez’s only support for his motion for new trial was a two-page affidavit

verified by his trial attorney. “An affidavit attached to a motion for new trial is not

evidence and it must be presented at a hearing on the motion and admitted into

evidence to be considered on appeal.” See Broussard v. State, No. 09-20-00259-CR,

2022 WL 2056388, at *5 (Tex. App.—Beaumont June 8, 2022, no pet.) (mem. op.,

29
not designated for publication); see also Rouse v. State, 300 S.W.3d 754, 762 (Tex.

Crim. App. 2009). With a silent record, we must presume that counsel’s conduct

falls within the wide range of reasonable representation. See Strickland, 466 U.S. at

689; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Broussard, 2022

WL 2056388, at *6. There is also nothing in the record showing that trial counsel’s

actions were so outrageous that no competent attorney would have engaged in them.

See Strickland, 466 U.S. at 687. We conclude Rodriguez failed to establish that the

defense attorney’s performance was deficient. We overrule issue four.

CONCLUSION

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

court’s judgment.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on January 30, 2024
Opinion Delivered July 31, 2024
Do Not Publish

Before Johnson, Wright and Chambers, JJ.

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