RODRIGUEZ v. STATE (2025)

OPINION

Appellant Demetrio Rodriguez was convicted of two counts of indecency with a child by contact. See Tex. Penal Code Ann. § 21.11(a), (c). In two issues on appeal, appellant argues: (1) the trial court abused its discretion by allowing evidence of appellant's pornography searches from his phone to be admitted; and (2) the evidence was legally insufficient to support his conviction as to count one.

We conclude that the trial court did not err by allowing the phone evidence to be admitted because it was highly relevant to a non-propensity issue and appellant did not meet his burden in establishing that the evidence's probative value was outweighed by its potential prejudicial value. We further conclude that given the testimony at trial, the evidence was legally sufficient to support appellant's conviction. Accordingly, we affirm the judgment of the trial court as challenged on appeal.

I. Background

Count one alleged that in November 2019, and with the intent to gratify his own sexual desires, appellant touched the genitals of D.P., his daughter, who was approximately twelve years old at the time. Count two alleged appellant touched D.P.’s genitals in May 2020.

On May 16, 2020, D.P.’s mother took D.P. to a clinic because D.P. was complaining of stomach pain. After the pediatrician asked Mother to step out of the room, D.P. disclosed to the pediatrician that appellant had touched her inappropriately on two separate occasions: on Thanksgiving Day in 2019, and after her uncle passed away in May 2020. The pediatrician contacted Child Protective Services (CPS) to investigate further.

Leslie Burton, a CPS investigator, conducted an interview with D.P. According to Burton, D.P. made disclosures consistent with the pediatrician's notes regarding D.P.’s initial disclosures at the clinic. D.P. also participated in a forensic interview at the Children Advocacy Center and multiple interviews with a school district counselor. D.P.’s testimony was similar across all interviews, alleging that appellant had touched her inappropriately on two separate occasions and that she was afraid to be alone with him.

During the ensuing investigation, digital evidence was extracted from appellant's cell phone, which demonstrated that between May 10 and May 12, 2020, appellant's search history included numerous searches of pornography involving father-daughter relationships, incest, and/or young girls. His phone internet browser also had a bookmark related to these pornography searches.

Appellant objected to the admission of the digital evidence extracted from his phone under Rules 403 and 404(b) of the Texas Rules of Evidence, arguing that the evidence was irrelevant and more prejudicial than probative. See Tex. R. Evid. 403, 404(b). However, the trial court admitted the evidence over his objections. The jury found appellant guilty on both counts, and punishment was assessed at thirteen years of imprisonment for each count, with the two sentences to run consecutively.

II. Appellate Issues

In his first issue, appellant argues the trial court erred by admitting evidence extracted from his phone over his objections under Rules 403 and 404(b).

A. Rule 404(b)

1. Standard of review and applicable law

The proper standard of review for a trial court's ruling under the Texas Rules of Evidence is abuse of discretion. See Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). A trial court abuses its discretion when its decision falls outside the “zone of reasonable disagreement.” Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); Montgomery v. State, 810 S.W.2d 372, 390–91 (Tex. Crim. App. 1990 & 1991) (op. on rhg.). Consequently, “if the ruling was correct on any theory of law applicable to the case,” then this court must uphold the judgment. Sauceda, 129 S.W.3d at 120.

“Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Tex. R. Evid. 404(b)(1). However, such evidence is admissible for other purposes, including, motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Tex. R. Evid. 404(b)(2). These exceptions under 404(b) are neither mutually exclusive nor collectively exhaustive. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). The rule only excludes evidence that is offered solely for the purpose of proving bad character. Id. The extraneous evidence must tend to enhance or diminish the probable existence of a fact of consequence in the case. Valadez v. State, 663 S.W.3d 133, 141 (Tex. Crim. App. 2022). “Even a small nudge toward proving a fact of consequence satisfies relevancy.” Id. (internal quotation marks omitted) (citing Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018)). “Whether extraneous offense evidence has relevance apart from character conformity, as required by Rule 404(b), is a question for the trial court. An appellate court owes no less deference to the trial judge in making this decision than it affords him in making any other relevancy determination.” Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

2. The evidence was admissible under Rule 404(b)

Appellant was charged with two counts of indecency with a child by intentionally or knowingly engaging in sexual contact. Tex. Penal Code Ann. § 21.11(a)(1), (c). Indecency with a child is a “nature of conduct” offense, requiring the State to prove that he acted with the specific intent to arouse or gratify sexual desire. See Pizzo v. State, 235 S.W.3d 711, 717–19 (Tex. Crim. App. 2007). Intent may be inferred from circumstantial evidence, “such as acts, words, and the conduct of the appellant.” Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).

Appellant's search history, which included father-daughter and incest pornography, was relevant to a material, non-propensity issue—appellant's intent to arouse or gratify his sexual desire with his daughter. See Roe v. State, 660 S.W.3d 775, 784 (Tex. App.—Eastland 2023, pet. ref'd) (holding that defendant's internet search history, including searches of websites containing incest pornography and father-daughter pornography, was admissible in trial for indecency with a child by contact); Sarabia v. State, 227 S.W.3d 320, 324 (Tex. App.—Fort Worth 2007, pet. ref'd) (in defendant's trial for aggravated sexual assault of a child, images depicting child pornography compiled from defendant's computer discs were admissible under Rule 404(b) because they tended to show intent or motive to arouse or gratify his sexual desire with underage boys); Storemski v. State, No. 14-14-00920-CR, 2016 WL 1237842, at *5 (Tex. App.—Houston [14th Dist.] Mar. 29, 2016, pet. ref'd) (mem. op., not designated for publication) (“In cases involving sexual offenses against children, a defendant's possession of or viewing of child pornography is relevant circumstantial evidence of intent to arouse or gratify his sexual desire.”). Thus, the evidence extracted from appellant's phone was admissible under Rule 404(b), and the trial court did not abuse its discretion in admitting such evidence.

B. Rule 403

1. Applicable law

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. “Under Rule 403, it is presumed that the probative value of relevant evidence exceeds any danger of unfair prejudice. The rule envisions exclusion of evidence only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value.” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (footnotes and quotation marks omitted). Thus, “[i]t is the burden of the party opposing the admission of the evidence to overcome this presumption by showing that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice or by the other dangers listed in Rule 403.” James v. State, 623 S.W.3d 533, 547 (Tex. App.—Fort Worth 2021, no pet.)

The “plain language of Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence is merely prejudicial. Indeed, all evidence against a defendant is, by its very nature, designed to be prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013) (internal citation omitted). Therefore, when reviewing a Rule 403 determination, an appellate court will reverse the trial court's ruling “rarely and only after a clear abuse of discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Montgomery, 810 S.W.2d at 392).

While not an exhaustive list, trial courts balance the following factors in a Rule 403 analysis: “(1) how probative the evidence is; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence.” Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019). The trial court's balancing test need not be performed on the record. Williams v. State, 958 S.W.2d 186, 195–96 (Tex.Crim.App.1997).

2. The evidence was admissible under Rule 403

Despite its inflammatory nature, evidence that appellant had searched for internet content depicting father-daughter and incest pornography was highly probative of his intent to commit indecency with a child, particularly since the complainant here is appellant's daughter. Additionally, the State had a strong need for the evidence because D.P. had no evident injuries, there were no other witnesses to the charged offenses, and appellant challenged D.P.’s credibility.

It is also worth noting that appellant does not assert that the phone evidence may have impressed the jury in some irrational way, nor does appellant argue that the State needed a disproportionate amount of time to develop the evidence. Therefore, we conclude that appellant did not meet his burden in proving that the probative value of the evidence was substantially outweighed by any of the dangers listed in Rule 403. See Hance v. State, 714 S.W.3d 775, 812 (Tex. App.—Fort Worth 2025, no pet.) (op. on reh'g) (“In a case involving a sexual offense against a child, evidence that a defendant possessed or viewed adult role-playing pornography can be admissible in the face of a Rule 403 objection when, as here, there is a clear nexus between the pornography and the victim or the pornography and the circumstances of the offense.”).

Accordingly, we overrule appellant's first issue.

C. Legal sufficiency

In his second issue, appellant argues that the evidence was insufficient to support his conviction as to count one.

1. Standard of review and applicable law

When reviewing the sufficiency of the evidence to support an essential element of an offense, an appellate court views all the evidence in the light most favorable to the verdict to determine whether any rational fact-finder could have found the challenged element beyond a reasonable doubt. Edward v. State, 635 S.W.3d 649, 655–56 (Tex. Crim. App. 2021).

The fact-finder alone judges the evidence's weight and credibility. See Tex. Code Crim. Proc. Ann. art. 38.04. A reviewing court will determine whether the necessary inferences are reasonable based on the evidence's cumulative force when viewed in the light most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). It also presumes the fact-finder resolved any conflicting inferences in favor of the verdict and will defer to that resolution. Id. at 448–49.

Under Count 1, appellant was indicted for indecency with a child by contact, which a person commits by “engag[ing] in sexual contact with the child or caus[ing] the child to engage in sexual contact.” Tex. Penal Code Ann. § 21.11(a)(1). “Sexual contact” is defined to include a list of acts when those acts are “committed with the intent to arouse or gratify the sexual desire of any person”—the element at issue here. Id. § 21.11(c). Thus, the State was required to prove that appellant touched D.P.’s sexual organ with the intent to arouse and gratify his sexual desire. That requisite intent may be inferred from his conduct, remarks, and the surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). Such circumstantial evidence is as probative as direct evidence, and the jury may draw reasonable inferences from that evidence. Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013).

On Thanksgiving in 2019, D.P. testified that she was at home with appellant and her younger sister while her mother was at work. D.P. was in a restroom when her father entered and began touching her, but she did not remember exactly where. She also said she did not remember what she had disclosed to the pediatrician. Based on her inability to instantly recall specific details, appellant argues that D.P. was not credible.

However, while D.P. initially said that she could not remember the incident on Thanksgiving 2019, she provided more details of that offense after the State presented her with her prior statement to investigators:

STATE: I know this is hard; but like earlier, I need you to be specific. On Thanksgiving, 2019, and in May of 2020, the part of your body that your father touched, what is it called?

D.P.: The front.

STATE: Do you know what it's called? Are you embarrassed?

D.P.: (Witness nods head.)

STATE: I'm sorry.

D.P.: That's okay.

STATE: I don't want these people to be confused about what happened. They need to know. Can you tell us what it's called?

D.P.: I can't pronounce it right.

STATE: Can you spell it?

D.P.: V-A-G-I-N-A.

“The law recognizes the limitations of child witnesses and does not expect them to recount events that occurred when they were children with the same level of clarity and precision as adults.” Carmona v. State, 610 S.W.3d 611, 616 (Tex. App.—Houston [14th Dist.] 2020, no pet.). At the time of trial, D.P. was seventeen years old, testifying about offenses that occurred approximately four or five years earlier.

D.P. described two instances in which appellant touched her genitals, and she identified appellant in court as the person who touched her. Because D.P. was younger than seventeen at the time of the incidents, her uncorroborated testimony alone was sufficient to support his conviction. See Tex. Code Crim. Proc. Ann. art. 38.07. And even if D.P.’s testimony could somehow be construed as inconsistent, any evidentiary conflicts or inconsistencies are resolved in favor of the verdict. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

Based on D.P.’s testimony, and combined with the circumstantial evidence reflecting that appellant used his phone to search for father-daughter and incest-themed pornography involving young girls, a rational juror could have found all of the elements of indecency with a child by contact beyond a reasonable doubt.

We overrule appellant's second issue.

III. Conclusion

We affirm the judgment of the trial court as challenged on appeal.

Tonya McLaughlin, Justice