NUMBER 13-24-00595-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LAQUITHA LASHAWN GABRIEL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE CRIMINAL DISTRICT COURT NO. 2
OF TARRANT COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Silva, Peña, and Fonseca
Memorandum Opinion by Justice Silva
A jury found appellant Laquitha Lashawn Gabriel guilty of continuous sexual abuse
of a young child, a first-degree felony. See TEX. PENAL CODE § 21.02(b), (h). The jury
assessed Gabriel’s punishment at seventy-five years’ imprisonment. By three issues,
Gabriel argues the trial court abused its discretion in admitting and refusing to admit
certain evidence during her trial. We affirm.
I. BACKGROUND 1
An amended indictment alleged by a single count that Gabriel committed one count
of continuous sexual abuse of a young child. See id. § 21.02(b). Specifically, the amended
indictment alleged that Gabriel, while seventeen years of age or older, committed two or
more acts of sexual abuse against Jill, 2 a child younger than fourteen years of age, during
a period that was thirty or more days in duration. See id. The specific acts of sexual abuse
alleged were sexual assault of a child and indecency with a child. See id. §§ 22.011,
21.11. The amended indictment also alleged Gabriel committed five counts of sexual
assault of a child against Jill and five counts of indecency with a child against Jill. See id.
§§ 22.011, 21.11.
Gabriel’s trial spanned three days. The jury heard testimony from Jill and Jill’s
sister Jackie, who are both Gabriel’s biological daughters, among other witnesses. The
evidence revealed that in May 2019, Jill, who was seventeen at the time, told a friend and
that friend’s mother that she had been sexually abused by Ricky King, Gabriel’s boyfriend,
for five years. Jill’s friend’s mother reported this to Child Protective Services, who then
reported it to the Fort Worth Police Department (FWPD). Shortly after, Jill moved out of
the home to live with her grandmother in Mesquite, Texas. Jill was interviewed at the
1 This case is before the Court on transfer from the Second Court of Appeals pursuant to a docketequalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). We are bound by the precedent of the transferring court to the extent that it differs from our own. See TEX. R. APP. P. 41.3.
2 We use a pseudonym to protect the identity of the minor child. See TEX. CONST. art. 1, § 30(a)(1)
(providing that a crime victim has “the right to be treated . . . with respect for the victim’s dignity and privacy throughout the criminal justice process”). Out of an abundance of caution, we will also use pseudonyms to identify her immediate family members.
2
Dallas Children’s Advocacy Center in June 2019 and spoke to a forensic interviewer
about the abuse. A sexual assault nurse examiner with the Cook Children’s Medical
Center examined Jill in July 2019 and Jill disclosed details of the sexual abuse. That same
month, Gabriel voluntarily interviewed with police and denied having any knowledge of
Jill’s sexual abuse. Jackie, who was nineteen at the time, also interviewed with police and
initially denied that she had been sexually abused by King. FWPD subsequently executed
a search warrant for King and Gabriel’s home and arrested them on the same day. Police
took several photographs of the residence that were admitted into evidence, including
some which depicted a bedroom that Jill and Jackie referred to as King’s “man cave.”
Jackie spoke with police again in 2024 and disclosed King had sexually abused her for
years.
Jill was twenty-two years old at the time of trial. She testified King had sexually
abused her since she was twelve. Jill stated she and King had vaginal intercourse a few
times a week over a period of five years. Most of the sexual abuse occurred in King’s
“man cave.” Jill explained prior to the first incident of sexual abuse that King and Gabriel
had conversations with her about losing her virginity. According to Jill,
[King] would say, “You should do it with someone you trust, a male figure
that you trust,” and he would say, “Like myself. If you were to—if I were to
take your virginity, I would make sure it wouldn’t hurt, and I would take care
of you.” And [Gabriel] would be there as that conversation was happening,
and she would be there sometimes during the conversation and be like,
“Yeah, he wouldn’t do that. He wouldn’t hurt you if you were to have sex
with him,” yeah.
Jill stated King used a condom the first time they had sex, which took place in the master
bedroom where King and Gabriel slept. Subsequently, Gabriel took Jill to the doctor to
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get on birth control. According to Jill, Gabriel told her that King wanted Jill on birth control
to prevent her from becoming pregnant. After Jill was on birth control, King never used a
condom again.
Jill described an incident where she, Jackie, Gabriel, and King were in the master
bedroom. Jill testified, “Sometimes he would be laying on the bed with my mom next to
him, and he would, like, stick my head underneath the covers and try to get me to give
him oral sex.” Jill stated Gabriel observed this and did not say anything or try to stop King.
Jill also described another incident where King became upset after Gabriel walked in on
Jill and King having sex in the “man cave.” Jill stated Gabriel apologized and said, “I’ll
come back when you guys are done” and left the room. Jill explained King would also
have her use a silver vibrating massager, which he placed on her vagina, during
intercourse.
Jill further testified King called her his girlfriend and that he would get upset when
she refused to have sex. She explained King would “punish” her by taking her clothes
and belongings away from her and ignoring her. Jill testified Gabriel told her she didn’t
have to be his girlfriend, that they could instead have a “friends with benefits relationship”
and “all [Jill] had to do was just sleep with [King] so he wouldn’t be mad at [Jill] anymore.”
Jill also explained King and Gabriel would sometimes get into arguments, and then
King would go to the garage, sit in one of the cars, and threaten to leave and never move
back. Gabriel would then talk to him and then tell Jill he wanted to talk to her. Jill went out
to the garage and sat in the car with King, and he would say he wanted to have sex. They
both would then leave the garage and go have sex in the “man cave.” Gabriel was present
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when Jill and King went upstairs. Jill stated she believed Gabriel knew that Jill and King
were going to have sex, and that was the reason Gabriel told her that King wanted to talk
to her in the first place. In addition, Jill stated King had once urinated on her and her sister
in a bathroom.
Prior to Jackie’s testimony, the State requested a hearing outside the presence of
the jury regarding her testimony. The trial court then conducted the hearing and heard
arguments from the parties. At the hearing, Gabriel argued that Jackie’s testimony
violated Texas Rule of Evidence 403, that the State could make its case without her
testimony, and that her testimony was cumulative. See TEX. R. EVID. 403. Gabriel further
argued “as extraneous conduct, [the Rule 403] balancing test is extremely important.” The
State responded that Jackie’s testimony was admissible under Texas Code of Criminal
Procedure Article 38.37, and because the jury could consider it “for any purpose, even
propensity evidence,” her testimony was “more probative than it [was] prejudicial.” Gabriel
then argued “[Article 38.37] does not mention [Rule] 403, and it would be extraordinarily
prejudicial, and . . . that [Jackie’s testimony] will not pass the balancing test.” Gabriel also
reiterated Jackie’s testimony would be cumulative because it would be similar to Jill’s
testimony. The trial court overruled Gabriel’s objection, stating:
All right. I’m referring both to [Articles] 38.37 and 38.371. [Article] 38.37
basically talks about evidence of extraneous offenses or acts, and it
basically states: Notwithstanding [Rules] 404 and 405 of the Texas Rules
of Evidence, evidence of other crimes, wrongs, or acts committed by the
defendant against a child who’s the victim of the alleged offense shall be
admitted for its bearing on relevant matters, including the state of mind of
the defendant and the child, and the previous and subsequent relationship
between the defendant and the child.
I think that’s what [the prosecutor] is referring to when he calls this
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witness also, but then [Article] 38.371 is evidence committed against a
member of defendant’s family or household, which effectively relates to this
case, of course.
And the legislature included this in the Rules of Evidence, and
basically it states that extraneous offense evidence may be relevant for a
noncharacter-conforming purpose to prove the nature of the relationship
between the defendant and the victim in this type of domestic violence case.
So basically, the legislature has allowed this notwithstanding the test
that the Court gives on whether or not evidence is probative and prejudicial,
and, of course, any type of evidence that we’re dealing with, sexual assault
of children, is going to be prejudicial. I mean, we know that, but I think the
legislature took this in mind when they codified both [Articles] 38.37 and
38.371. So the Court’s going to allow it.
Jackie was twenty-four years at the time of trial. She stated that when she was fourteen,
King asked her to be his girlfriend and told her he had gotten permission from Gabriel to
do so. When Jackie asked Gabriel about her giving King permission, Gabriel said “Yes,
but that’s still your choice.” Jackie explained she and King had penetrative vaginal sex
multiple times a week for seven years, from when she was fourteen to twenty-one years
old. Jackie stated she told Gabriel many times over the years that she did not want to
have sex with King, and Gabriel would reply that Jackie could stop it if she wanted to and
that it was her choice. However, Jackie explained when she and Jill refused to have sex
with King, Gabriel would try to persuade them to continue to have sex with him “just to
please him and keep him to stay.” Jackie also stated that King, in Gabriel’s presence,
once stated he wanted to urinate on Jackie and Jill. Gabriel said nothing nor objected to
it. King told the girls to go to the bathroom, they did, and King urinated on them.
Jackie explained she told FWPD in 2019 that she had not been sexually abused
out of fear. She stated King told her not to say anything, that no one would believe her if
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she said anything, and she would be harmed even if King went to prison. However, Jackie
testified she was finally able to leave King and Gabriel’s home in 2024 and spoke to police
about the sexual abuse she endured a few weeks after moving out. Jackie claimed King
and Gabriel had removed all the “vibration things” that King used prior to the police
executing the search warrant of the home. She testified the “vibration things” were kept
in a dresser or closet in the “man cave.”
After the jury heard Jackie and a few other witnesses testify, the trial court heard
arguments outside the presence of the jury pertaining to the State’s request to present
evidence that King and Gabriel attempted to commit suicide together and that King died
as a result. The State argued this evidence showed consciousness of guilt and would
rebut Gabriel’s defensive theories that the sexual abuse never happened and that she
lacked knowledge of it. The prosecutor also argued that
presenting only her suicide attempt without any information regarding his is
substantially more prejudicial than it is probative on our end because it
leaves a false impression from the jury. They may be left wondering that
he’s out on the run, that we haven’t found him, and, you know, maybe she’s
taking her life because for other reasons than her guilt.
Gabriel’s counsel responded that evidence of King’s suicide presented a
“confrontation problem because there’s no way to present any kind of rebuttal to
what . . . King’s state of mind might have been.” Gabriel’s counsel also argued evidence
of Gabriel’s attempted suicide would require the jury to “guess as to the reason,” that
“[m]any people commit suicide who have done nothing wrong,” and that “[m]any people
[who] have committed suicide have had multiple attempts regardless of any criminal
pending case.” In addition, Gabriel’s counsel suggested “before you can make some kind
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of inference like [consciousness of guilt], there should be an expert to say what was this
specific suicidal person’s . . . state of mind.”
The trial court permitted the State to present evidence of Gabriel’s suicide attempt
as consciousness of guilt, but it would not permit evidence of King’s suicide, initially citing
the Sixth Amendment’s Confrontation Clause. The State pointed out that the Sixth
Amendment did not apply because they were not offering any testimonial statement from
King. The trial court then stated “any testimony concerning [King] would be more, I
believe, prejudicial than probative.” Thereafter, the following exchange occurred:
[Gabriel’s counsel]: And as an ironic after note, Judge, certainly
should my client still desire to testify, if it’s
coming out in cross, I’m going to bring it out in
direct. So just a little irony.
THE COURT: You’re going to bring what out?
[Prosecutor]: Yeah, I’m confused.
[Gabriel’s counsel]: Well, if . . . the State can cross her about [King],
I don’t want them to be the first ones to—
THE COURT: No, they’re not going to question her about
[King]. They’re going to question her about
herself.
[Prosecutor]: Well, Your Honor, if the door is open, though, I
think is what [Gabriel’s counsel] is getting at, if
I’m following correctly.
[Gabriel’s counsel]: I understood [the Court] to say that, of course, if
she testifies, it’s all fair game.
THE COURT: No, no, no. It’s all fair game about her.
[Gabriel’s counsel]: Thank you.
THE COURT: But [the prosecutor] is right. If you open the door
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because you ought to be—she would be your
witness. So if you open the door and y’all get
into any discussions about [King] or the fact that,
you know, he might have committed suicide or
attempted to consider suicide, then, of course,
they can cross-examine her on that, but I think
you know full well how the questions are
concerning that.
[Gabriel’s counsel]: Yeah, but it’s a door that could open quite easily,
Judge.
THE COURT: Well, but that would be on you. It’s not on the
State.
[Gabriel’s counsel] I know.
THE COURT: Okay. All right. Just be aware of that.
[Gabriel’s counsel]: I am, Judge.
THE COURT: All right. Because I’ve already said that [the
State] can’t get into it, but if you get into it, then
the door’s open. It’s wide open. [The State] can
get into anything they want if you bring it up.
[Gabriel’s counsel]: Sure. I just wanted to clarify because I
misunderstood.
THE COURT: No, no, no. We’re good on that. They’re not
going to get into anything about [King] unless
the door is open.
[Gabriel’s counsel]: Okay. Thank you, Judge.
THE COURT: And that would be through her testimony if she
decides to take the stand.
The State thereafter presented the testimony of another witness and rested its case-inchief.
Gabriel testified in her own defense and generally disputed Jill and Jackie’s
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testimony concerning King’s sexual abuse and her knowledge and role in it. Specifically,
Gabriel stated her daughters’ story was “ridiculous.” According to Gabriel, King had
several physical health conditions including chronic kidney disease, diabetes, high blood
pressure, and high cholesterol. Gabriel also stated King had mental health conditions,
including depression, anxiety, bipolar, and schizoaffective disorder. She testified King
took more than one or two medications that caused him to have difficulty functioning
sexually a majority of the time. She also stated his kidney disease affected his genital
region and that he suffered pain. Gabriel explained King had a stent that was inserted
through his penis in order to help him pass kidney stones, and that his recovery from this
outpatient procedure involved lying in bed on medication and in a lot of pain. Gabriel
indicated that some of the medication caused King to have erectile dysfunction and made
him very sleepy. He had five stent procedures between 2016 to 2018, and each time the
stent would be inserted for a few weeks and cause him discomfort. When asked whether
it made sense that King “would have been physically able to have sex that many times a
week,” Gabriel replied, “No, it does not.”
On cross-examination, Gabriel suggested Jackie moved out of her home because
she did not want to pay bills or follow her rules. Gabriel admitted she stayed with King for
years after Jill moved out of the home. During a bench conference, the State requested
permission to ask Gabriel about her suicide attempt and King’s suicide, arguing Gabriel
had opened the door to both. The trial court granted the State’s request, and the following
exchange occurred:
[Gabriel’s counsel]: How was that door opened?
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THE COURT: Well, it was opened when you said that [King]
was not physically able to have sex.
[Gabriel’s counsel]: What’s that got to do with suicide if he couldn’t—
THE COURT: Consciousness of guilt.
[Gabriel’s counsel]: Huh?
THE COURT: It’s consciousness of guilt, and I told you to be
careful about all of that. You opened the door.
[Gabriel’s counsel]: I don’t know how.
THE COURT: I can tell you how. When you said to the jury was
[King] physically able to have sex, and she said
no.
[Gabriel’s counsel]: What’s that got to do with suicide?
THE COURT: Well, it’s consciousness of guilt.
[Gabriel’s counsel]: What’s that got to do with suicide?
THE COURT: I’ve already told you.
[Gabriel’s counsel]: Okay.
After the bench conference, the State asked Gabriel if she was aware that King was set
for trial on the same charges she was facing on June 24, 2024, and she responded, “Yes.”
Gabriel stated she was with King on that day. The State then asked if she and King tried
to kill themselves together, and Gabriel’s counsel lodged objections based on Texas
Rules of Evidence 401, 402, 403, and 404. The trial court overruled the objections.
Gabriel then affirmed she and King tried to commit suicide together on June 24,
2024, the same day a jury was supposed to be selected for King’s trial. When asked why
they both tried to kill themselves, Gabriel replied, “Because of life and I have issues and
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just stuff we’ve been dealing with throughout our lifetime.” Gabriel also affirmed the
double suicide attempt had nothing to do with her or King’s trial. Gabriel admitted King’s
suicide attempt was successful. Gabriel also affirmed she wrote a “suicide note”
addressed to her sister, which was admitted into evidence, stating, “My health is declining,
and I refuse to live behind jailhouse bars for something I didn’t do.” She indicated that she
remained in the hospital after her suicide attempt until July 4, 2024. She also testified she
had previously attempted to commit suicide in 2014.
Darla Hallman, Gabriel’s friend, also testified during Gabriel’s case-in-chief. During
her testimony, Hallman stated she had a conversation with Jackie concerning “the
situation.” When Gabriel’s counsel asked Hallman what Jackie said, the State lodged a
hearsay objection. The following exchange occurred:
[Gabriel’s counsel]: This would be a statement against interest on
[Jackie’s] part if it would expose her to
potential . . . liability for making a false
statement.
THE COURT: That’s your legal—
[Gabriel’s counsel]: In addition, with further exploration, if we need
to lay a foundation for a prior inconsistent
statement.
THE COURT: No. That’s sustained.
Hallman continued testifying and the State cross-examined her. Gabriel rested her casein-chief, then made an offer of proof outside the presence of the jury concerning what
Hallman would have testified to had she been permitted to do so. During this offer of
proof, Hallman testified that around summer of 2019, Jackie told her, “‘Well, I made a
statement to the police, and you know, I told them, you know, what I said—what I had to
12
say. I wrote out a statement.’ And then she said, ‘[Jill] is lying.’” Gabriel’s counsel then
argued that this testimony concerning this statement was inconsistent with Jackie’s trial
testimony, but Gabriel’s counsel admitted she needed “[Jackie] to lay the predicate for
that.” The State responded that the statement was not inconsistent with Jackie’s
testimony concerning her interview with police, and then the following exchange occurred:
[Gabriel’s counsel]: Your Honor, I think the determination would be,
is it inconsistent with what her testimony is
today? [Jackie’s] testimony today did not say it
was a lie.
What she said to the detective was, “I don’t
know if—I don’t think anything happened. I don’t
really believe it. I don’t think anything happened.
She just wants what she wants.”
And this is of a different magnitude when she
says, “It’s a lie. [Jill] is lying.”
THE COURT: Well, I haven’t heard anything that she said to
the detective at all. I mean, this is just something
that you’re telling me.
[Gabriel’s counsel]: There was testimony about her interview with
the detective.
[Prosecutor]: But we didn’t get into the statements because it
would have been hearsay.
THE COURT: Right.
[Prosecutor]: When . . . [the other prosecutor] question[ed]
the detective, like at most she went into was,
like, did [Jackie] disclose any sexual abuse. We
didn’t get into the statements because that
would be hearsay.
And then when I was questioning [Jackie]
myself, I just asked her, “Did you tell you were
not sexually abused?” I didn’t ask her any
13
questions about [Jill]. I just asked [Jackie], “Did
you tell the police that you were not abused?
Why did you do that?” “Because they told me to
lie.”
THE COURT: I mean, that’s how I heard it. That’s a fact issue
for the jury to make those decisions on who’s
telling the truth anyway. So I’m not going to
allow anything else on that.
Thereafter, the State informed the trial court it had no rebuttal witnesses it wished to
present and rested.
The next day, the trial court read its charge to the jury. The charge included an
abstract instruction on the law of parties pursuant to Texas Penal Code Section 7.02(a).
See TEX. PENAL CODE 7.02(a)(2) (“A person is criminally responsible for an offense
committed by the conduct of another if . . . acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense; or . . . having a legal duty to prevent commission of
the offense and acting with intent to promote or assist its commission, he fails to make a
reasonable effort to prevent commission of the offense.”). In addition, the charge included
the law of parties in the application portion for each count. See id. After hearing closing
arguments, the jury found Gabriel guilty of continuous sexual abuse of a young child and
sentenced her to seventy-five years’ imprisonment. This appeal followed.
II. EVIDENTIARY RULINGS
A. Standard of Review and Applicable Law
“We review a trial court’s evidentiary rulings for abuse of discretion.” Reyna v.
State, No. 13-24-00207-CR, ___ S.W.3d ___, 2026 WL 842977, at *3 (Tex. App.—Corpus
14
Christi–Edinburg Mar. 26, 2026, no pet.) (citing Inthalangsy v. State, 634 S.W.3d 749,
754 (Tex. Crim. App. 2021)). This standard of review applies to a trial court’s decision to
admit or exclude extraneous-offense evidence. De La Paz v. State, 279 S.W.3d 336, 343
(Tex. Crim. App. 2009). There is no abuse of discretion unless a trial court’s decision to
admit or exclude evidence lies outside the zone of reasonable disagreement. See id. at
343–44. “Furthermore, we will uphold a trial court’s evidentiary ruling, even if the trial
court’s reasoning is flawed, if it is correct on any theory of law that finds support in the
record and is applicable to the case.” Wishert v. State, 654 S.W.3d 317, 330 (Tex. App.—
Eastland 2022, pet. ref’d) (first citing Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App.
2016); and then citing Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland 2015,
no pet.)).
Rule 404(b) of the Texas Rules of Evidence limits character evidence, but it is
nevertheless a rule of inclusion. TEX. R. EVID. 404(b); De La Paz, 279 S.W.3d at 343. Rule
404(b) precludes the admission of evidence of a crime, wrong, or act solely to prove a
person’s character to show that he acted in conformity with that character on a particular
occasion, but the rule allows for such evidence to be admitted for other purposes, “such
as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” TEX. R. EVID. 404(b)(2). Those listed purposes “are neither
mutually exclusive nor collectively exhaustive.” De La Paz, 279 S.W.3d at 343.
Notwithstanding Rule 404(b), Article 38.37 permits the admission of evidence of
prior sexual offenses for “any bearing the evidence has on relevant matters, including the
character of the defendant and acts performed in conformity with the character of the
15
defendant,” when the charged offense concerns continuous sexual abuse of a young
child. TEX. CODE CRIM. PROC. art. 38.37, § 2(b); see also id. art. 38.37, § 2(a)(1)(B); TEX.
R. EVID. 404(b). Thus, extraneous offense evidence admitted under Article 38.37 “is, by
definition, propensity character evidence” that the Legislature has deemed “admissible
notwithstanding those characteristics.” Harris v. State, 475 S.W.3d 395, 402 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d). “Article 38.37, Section 2(b) allows for the admission
of evidence that the defendant has committed a separate offense of a sexual nature
against a child; the ‘child victim’ of the separate offense need not be the victim of the
offense for which the defendant is currently on trial.” Wishert, 654 S.W.3d at 330
(emphasis in original). “For this type of evidence to be admissible under Article 38.37,
Section 2(b), the defendant need not have been charged with, tried for, or convicted of
the separate offense.” Id. at 331 (citing Castillo v. State, 573 S.W.3d 869, 880–81 (Tex.
App.—Houston [1st Dist.] 2019, pet. ref’d)).
Before admitting such evidence, the trial court “must” conduct a preliminary
hearing outside the presence of the jury to “determine that the evidence likely to be
admitted at trial will be adequate to support a finding by the jury that the defendant
committed the separate offense beyond a reasonable doubt.” TEX. CODE CRIM. PROC. art.
38.37, § 2-a. A trial court may exclude evidence admissible under Article 38.37 if its
probative value is “substantially outweighed” by a danger of unfair prejudice, confusing
the issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence. TEX. R. EVID. 403; see TEX. CODE CRIM. PROC. art. 38.37, § 2(b) (excepting
evidence admitted under Article 38.37 from the application of Rules 404 and 405 but not
16
Rule 403). However, to trigger a balancing test under Rule 403, the defendant must make
a timely objection or request. Belcher v. State, 474 S.W.3d 840, 847 (Tex. App.—Tyler
2015, no pet.) (“When evidence of a defendant’s extraneous acts is relevant under Article
38.37, Section 2(b), the trial court is still required to conduct a Rule 403 balancing test
upon proper objection or request.”); see also Killinger v. State, No. 13-17-00016-CR, 2020
WL 728305, at *4 (Tex. App.—Corpus Christi–Edinburg Feb. 13, 2020, pet. ref’d) (mem.
op., not designated for publication) (discussing the procedures for admitting evidence
under Article 38.37 and noting that, “[u]pon proper objection, the trial court must also
conduct a balancing test under Rule 403”); White v. State, No. 03-17-00504-CR, 2019
WL 2518755, at *13 (Tex. App.—Austin June 19, 2019, no pet.) (mem. op., not designated
for publication) (“Once a Rule 403 objection is asserted, the trial court must engage in the
balancing test required by that rule.”). A proper Rule 403 analysis includes consideration
of the following non-exclusive factors: “(1) the probative value of the evidence; (2) the
potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to
develop the evidence; and, (4) the proponent’s need for the evidence.” Prible v. State,
175 S.W.3d 724, 733 (Tex. Crim. App. 2005).
B. Analysis
1. Jackie’s Testimony
In her first issue, Gabriel argues the trial court abused its discretion in admitting
Jackie’s testimony of sexual abuse committed against her because it “failed to apply the
proper statutory provisions in conducting its Article 38.37 hearing and further failed to
apply [Rule] 403 in making its decision.” Specifically, Gabriel points to the trial court’s
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pronouncement of its ruling on her objections to argue the trial court by its “own
words . . . appear[ed] to have refused to consider [Rule] 403, and further relied on Section
1 of Art[icle] 38.37 rather than on Section 2” when admitting Jackie’s testimony. See TEX.
CODE CRIM. PROC. art. 38.37, § 2-a(1)–(2); TEX. R. EVID. 403. The record demonstrates
Gabriel’s sole objection to Jackie’s testimony during the trial court’s Article 38.37 hearing
was that said testimony violated Rule 403. See TEX. CODE CRIM. PROC. art. 38.37, § 2-a(1)–(2); TEX. R. EVID. 403. In other words, Gabriel did not object that Jackie’s testimony
was not admissible under Article 38.37. See TEX. CODE CRIM. PROC arts. 38.37.
To preserve a complaint for appellate review, the point of error raised on appeal
must comport with the objection made at trial, or error is not preserved. Thomas v. State,
505 S.W.3d 916, 924 (Tex. Crim. App. 2016); Bekendam v. State, 441 S.W.3d 295, 300
(Tex. Crim. App. 2014). While appellate courts “have long eschewed hyper-technical
requirements for error preservation” and that one “need not employ ‘specific words or
technical considerations’ to avoid forfeiting their complaints,” the objecting party must “let
the trial court know what he wants and why he feels himself entitled to it clearly enough
for the judge to understand him.” Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App.
2016). “[A] general or imprecise objection will not preserve error for appeal unless ‘the
legal basis for the objection is obvious to the court and to opposing counsel.’” Id.
(emphasis in original) (quoting Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App.
2006)). To the extent Gabriel complains the trial court erred in admitting Gabriel’s
testimony pursuant to Article 38.37, we conclude she failed to preserve that issue
because she did not object to the admission of her testimony on that basis. See Thomas,
18
505 S.W.3d at 924; TEX. R. APP. P. 33.1(a).
Regarding her Rule 403 complaint, we note a trial court is required to conduct a
403 balancing test to determine whether evidence should be excluded upon a proper
objection or request. See Belcher, 474 S.W.3d at 847; see also Killinger, 2020 WL
728305, at *4; White, 2019 WL 2518755, at *13. But the trial court is not required to
conduct a formal Rule 403 hearing or announce that it is conducting the balancing test,
and it “is not required to place the results of its balancing test on the record.” Colvin v.
State, 54 S.W.3d 82, 85 (Tex. App.—Texarkana 2001, no pet.) (citing Williams v. State,
958 S.W.2d 186, 195 (Tex. Crim. App. 1997)). “Rather, the trial court is presumed to
engage in the required balancing test once a party objects on the ground of Rule 403 and
the trial court rules on the objection, unless the record indicates otherwise.” Id.; see also
Williams, 958 S.W.2d at 195–96; Maldonado v. State, 452 S.W.3d 898, 906 (Tex. App.—
Texarkana 2014, no pet.).
Here, upon admitting the complained-of testimony, the trial court expressly stated
in relevant part:
So basically, the [L]egislature has allowed [extraneous offense testimony]
notwithstanding the test that the Court gives on whether or not evidence is
probative and prejudicial, and, of course, any type of evidence that we’re
dealing with, sexual assault of children, is going to be prejudicial. I mean,
we know that, but I think the [L]egislature took this in mind when they
codified both [Articles] 38.37 and 38.371. So the Court’s going to allow it.
(emphasis added). The trial court’s comments indicate it believed Articles 38.37 and
38.371 served as categorial exceptions to Rule 403, which is incorrect because evidence
admitted under those articles are excepted from application of Rules 404 and 405, not
Rule 403. See TEX. CODE CRIM. PROC. arts. 38.37, 38.371. Under these circumstances,
19
we conclude the record affirmatively indicates the trial court did not perform the balancing
test, and thus, the presumption the trial court engaged in the required balancing test does
not apply. See Colvin, 54 S.W.3d at 85. Because such failure was error, we must assess
whether Gabriel suffered harm. See id. at 85–86 (applying the Rule 403 balancing test
and concluding that the trial court’s failure to conduct the balancing test did not affect the
appellant’s substantial rights); see also Wishert, 654 S.W.3d at 332 (same); Daraghmeh
v. State, No. 05-13-01127-CR, 2014 WL 7269924, at *4–5 (Tex. App.—Dallas Dec. 22,
2014, no pet.) (mem. op., not designated for publication) (same).
“[A] trial court’s erroneous admission of evidence does not result in constitutional
error; therefore, it will be disregarded if the error did not affect the defendant’s substantial
rights.” Wishert, 654 S.W.3d at 332 (first citing TEX. R. APP. P. 44.2(b); then citing Garcia
v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004); and then citing Johnson v. State,
967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). A substantial right is implicated when the
trial court’s error had a substantial or injurious effect or influence in determining the jury’s
verdict. See Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). In assessing
the likelihood the jury’s decision was adversely affected by the error, we must consider
the entire record, including all the evidence presented at trial, the nature of the evidence
supporting the jury’s verdict, the character of the alleged error and how it might be
considered together with the other evidence in the case, the trial court’s instructions to
the jury, and whether the evidence of the defendant’s guilt is overwhelming. See Motilla
v. State, 78 S.W.3d 352, 355–58 (Tex. Crim. App. 2002). Further, in making that
determination, we are not concerned with whether there was sufficient evidence on which
20
the defendant could have been convicted, but rather whether there is a reasonable
possibility that the erroneously admitted evidence might have contributed to the
conviction. See Lopez v. State, 288 S.W.3d 148, 178 (Tex. App.—Corpus Christi–
Edinburg 2009, pet. ref’d). Therefore, reversal is not required if, after reviewing the entire
record, we have fair assurance the error did not influence the jury’s verdict or had only a
slight effect. See Motilla, 78 S.W.3d at 355; Johnson, 967 S.W.2d at 417.
“At the outset, our harm analysis requires that we first determine if the danger of
unfair prejudice substantially outweighed the probative value of the challenged evidence,
and then, if it did, whether the admission of the extraneous evidence affected the
defendant’s substantial rights.” Wishert, 654 S.W.3d at 333 (citing Colvin, 54 S.W.3d at
85) (addressing harm caused by the trial court’s failure to conduct a Rule 403 balancing
test and concluding said error did not affect the appellant’s substantial rights after
concluding the probative value of the complained-of evidence was not substantially
outweighed by the danger of unfair prejudice). Because Rule 403 favors the admissibility
of relevant evidence, it is presumed that relevant evidence will be “more probative than
prejudicial.” Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002); Montgomery v.
State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1990) (op. on reh’g); see also De La Paz,
279 S.W.3d at 343 & n.17. The intent of Rule 403 is not to exclude all evidence that tends
to prejudice the opponent’s case. See Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim.
App. 2010). Rather, it only prevents the admission of evidence that promotes a jury’s
decision on an improper basis. See Id.; Montgomery, 810 S.W.2d at 389; Render v. State,
347 S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d).
21
Regarding the probative value of Jackie’s testimony, we note “evidence that a
defendant has sexually abused another child is relevant to whether the defendant
sexually abused the child-complainant in the charged case.” Caston v. State, 549 S.W.3d
601, 612 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (first citing Robisheaux v. State,
483 S.W.3d 205, 220–21 (Tex. App.—Austin 2016, pet ref’d); and then citing Gaytan v.
State, 331 S.W.3d 218, 228 (Tex. App.—Austin 2011, pet. ref’d)). “Because the evidence
of prior sexual abuse of children ‘was especially probative of [the defendant’s] propensity
to sexually assault children,’ the Rule 403 balancing test normally will not favor the
exclusion of evidence of the defendant’s prior sexual assaults of children.” Alvarez v.
State, 491 S.W.3d 362, 371 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (quoting
Belcher, 474 S.W.3d at 848). Here, Gabriel was convicted as a party to King’s sexual
abuse of Jill. In such a case, evidence King sexually abused Jackie is highly probative of
whether he sexually abused Jill, which was in turn highly probative of Gabriel’s culpability
as a party to his conduct. We conclude this factor weighs in favor of admissibility. 3 See
Prible, 175 S.W.3d at 733.
Regarding the potential to impress the jury in some irrational yet indelible way,
Gabriel only argues “[t]he accusation of being a criminal generally is poison to the health
of a fair trial.” However, “Rule 403 protects a criminal defendant against unfair prejudice,
not just any prejudice.” Wishert, 654 S.W.3d at 334 (emphasis in original); see also James
3 Gabriel suggests the probative value of Jackie’s testimony was “attenuated” because “her credibility was dubious” when considering her testimony indicating she “lied” to police. However, the Texas Court of Criminal Appeals has emphasized the “credibility of evidence to establish ‘other crimes, wrongs, or acts’ is not a proper inquiry for the trial court in ruling on the exclusion, vel non, of relevant evidence under Rule 403.” Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990). Thus, we conclude it is inappropriate for this Court to consider Jackie’s credibility in conducting our Rule 403 analysis.
22
v. State, 623 S.W.3d 533, 549 (Tex. App.—Fort Worth 2021, no pet.) (“Evidence is not
excludable under Rule 403 if it is merely prejudicial; ‘all evidence against a defendant
is . . . designed to be prejudicial.’” (alteration in original) (quoting Pawlak v. State, 420
S.W.3d 807, 811 (Tex. Crim. App. 2013))). Furthermore, Article 38.37 allows for the
admissibility of a defendant’s prior sexual assault of children. “The statute itself
recognizes that evidence of children whom the defendant has previously sexually
assaulted is ‘by definition, propensity, or character evidence.’” Alvarez, 491 S.W.3d at
371 (quoting Bradshaw v. State, 466 S.W.3d 875, 884 (Tex. App.—Texarkana 2015, pet.
ref’d)). It also recognizes “that character evidence is [not] an ‘irrational’ basis for
determining a person’s conduct.” Id. Gabriel has not identified any particular facts derived
from Jackie’s testimony that are uniquely or unfairly prejudicial, and we have found none.
Furthermore, Jackie’s testimony “discussed actions that were no more serious than the
allegations forming the basis for the indictment.” Robisheaux, 483 S.W.3d at 220. We
conclude this factor weighs in favor of admissibility. See Prible, 175 S.W.3d at 733.
Regarding the time needed to develop the evidence, we note the reporter’s record
contains approximately 309 pages of testimony from the guilt phase of Gabriel’s trial.
Jackie’s testimony took approximately 33 pages of that record. Thus, Jackie’s testimony
took a little over one-tenth of the trial. We further note Jackie was one of eight witnesses
presented by the State. Those witnesses took up approximately 232 pages. Under these
circumstances, we conclude the State did not spend an inordinate amount of time in
developing Jackie’s testimony, and this factor weighs in favor of admissibility. See id.
Regarding the State’s need for the evidence, Gabriel argues the State had “no
23
need to bring in yet another bolstering witness” in light of other witnesses’ testimony
presented at trial. We disagree. The State presented no physical evidence that Jill was
sexually abused by King, nor physical evidence of Gabriel’s culpability as a party to his
conduct. Without Jackie’s testimony concerning the similar acts of sexual abuse King
committed against her, as well as Gabriel’s knowledge, participation, aid, and
encouragement of those acts, the State’s case would have come down to Jill’s word
against Gabriel’s. See Robisheaux, 483 S.W.3d at 220 (holding the State’s need-for-theevidence factor weighed in favor of admission because, without a witness’s extraneous
offense testimony, “the State’s case would have basically come down to” the
complainant’s word against the defendant’s in a sexual assault of a child case). And Jill’s
credibility was clearly a significant issue in the case because Gabriel’s primary defensive
theory 4 was that no sexual abuse occurred. Thus, we conclude the State had great need
for Jackie’s testimony, and this factor weighs in favor of admissibility. See Prible, 175
S.W.3d at 733.
4 During opening statements, Gabriel’s counsel stated the following:
Of course you will hear that there’s more to this story. There’s always more to the story. It
may not be about [King], but it’s about [King]. If [King]’s allegations are not true, there’s
nothing. Nothing. No harm. No foul.
So you’re going to hear that [Jill] had a reason to say what she said and that she
got what she wanted after she said what she said, and you’re going to hear that when
[Gabriel] testifies. You’re going to hear that when [Gabriel] looks you right in the eyes and
says that she is not guilty.
She’s going to say it didn’t happen. She’s going to say, “If it did happen, I surely
didn’t know about it.” But she thinks it didn’t happen. She’s going to tell you that herself.
She’s going to look you right in the eye, and she’s going to say, “I’m not guilty.”
And we’re going to ask you, after you hear all the testimony and watch all of the
witnesses and weigh what they have to say and why they may have said it, that you will go
and we will ask you to return a verdict of not guilty.
24
Because all four non-exhaustive factors weigh in favor of admissibility, we
conclude the probative value of Jackie’s testimony was not substantially outweighed by
the danger of unfair prejudice. See id. Consequently, we conclude the trial court’s error
in failing to conduct the balancing test did not affect Gabriel’s substantial rights. See
Wishert, 654 S.W.3d at 333; Colvin, 54 S.W.3d at 85; Daraghmeh, 2014 WL 7269924, at
*4–5; TEX. R. APP. P. 44.2(b). We overrule Gabriel’s first issue.
2. King’s Suicide
In her second issue, Gabriel argues the trial court abused its discretion when it
admitted evidence of King’s suicide over her objections. Specifically, Gabriel argues that
the trial court initially
articulated a well-reasoned basis for excluding the evidence, i.e., prejudice
that would harm [Gabriel] because there would be no way to ascertain why
[King] killed himself. Here[,] without revising its finding of prejudice[,] the
[trial] court made an unwarranted leap of logic to find that mere evidence of
medical problems mentioned by [Gabriel] in her testimony converted
[King]’s suicide into an act driven by consciousness of guilt. The [trial] court
erred by abusing its discretion in allowing into evidence (that the [trial] court
had found was more prejudicial to [Gabriel] than probative) by concluding
that [Gabriel] opened the door to consciousness of guilt by testifying to
[King]’s medical issues.
We construe Gabriel’s argument as a challenge to the trial court’s rulings concerning her
Rule 403 and Rule 404 objections. See TEX. R. EVID. 403, 404. We disagree with Gabriel’s
arguments concerning both.
We first address Gabriel’s argument concerning Rule 404. Gabriel argues the trial
court erred in determining that her testimony concerning King’s health conditions opened
the door to evidence of his suicide. See Hayden v. State, 296 S.W.3d 549, 554 (Tex.
Crim. App. 2009) (“Evidence that is otherwise inadmissible may become admissible when
25
a party opens the door to such evidence”). This argument is premised on the notion that
evidence of King’s suicide violated Rule 404. It is unnecessary to evaluate whether
Gabriel’s testimony opened the door to said evidence because the trial court could have
reasonably concluded it was admissible for purposes other than showing character
conformity, such as showing consciousness of guilt. See TEX. R. EVID. 404(b); Wishert,
654 S.W.3d at 330 (noting appellate courts uphold a trial court’s evidentiary ruling, “even
if the trial court’s reasoning is flawed, if it is correct on any theory of law that finds support
in the record and is applicable to the case”). “Texas courts recognize ‘consciousness of
guilt’ as an exception to [R]ule 404(b)’s general prohibition against evidence of
extraneous [crimes, wrongs, or acts].” Hedrick v. State, 473 S.W.3d 824, 830 (Tex. App.—
Houston [14th Dist.] 2015, no pet.) (first citing Torres v. State, 794 S.W.2d 596, 598–99
(Tex. App.—Austin 1990, no pet.); and then citing Peoples v. State, 874 S.W.2d 804, 809
(Tex. App.—Fort Worth 1994, pet. ref’d)).
“A ‘consciousness of guilt’ may be one of the strongest indicators of guilt.” Hance
v. State, 714 S.W.3d 775, 816 (Tex. App.—Fort Worth 2025, no pet.) (quoting Lee v.
State, 866 S.W.2d 298, 302 (Tex. App.—Fort Worth 1993, pet. ref’d)). “For example, acts
that are designed to reduce the likelihood of prosecution, conviction, or incarceration are
admissible to show the defendant’s ‘consciousness of guilt.’” Id. (quoting Hedrick, 473
S.W.3d at 830). “Evidence that a defendant attempted suicide after the offense is relevant
to show the defendant’s consciousness of guilt.” Lamerand v. State, 540 S.W.3d 252, 261
(Tex. App.—Houston [1st Dist.] 2018, pet. ref’d). “And evidence of a consciousness of
guilt, in turn, is relevant to show that the defendant committed the offense.” Id. (citing
26
Ross v. State, 154 S.W.3d 804, 812 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d)).
It follows that evidence of King’s suicide raised an inference of his consciousness of guilt,
which in turn was relevant to show he committed the acts of sexual abuse against Jill,
which was further relevant toward Gabriel’s culpability for his conduct. See id. Therefore,
Rule 404(b) did not prohibit evidence of King’s suicide and we conclude the trial court did
not abuse its discretion in overruling Gabriel’s Rule 404 objection. See De La Paz, 279
S.W.3d at 343; Reyna, ___ S.W.3d ___, 2026 WL 842977, at *3; Wishert, 654 S.W.3d at
330.
We next address Gabriel’s Rule 403 objection. Though the trial court initially ruled
that evidence of King’s suicide was “more . . . prejudicial than probative,” it implicitly found
otherwise once it determined that Gabriel’s testimony opened the door to said evidence
and permitted its admission over Gabriel’s objections. To the extent Gabriel suggests that
there was “no logical connection” for the trial court to divert from its initial ruling concerning
unfair prejudice, we conduct a Rule 403 analysis. See Prible, 175 S.W.3d at 733.
Evidence of King’s suicide was highly probative because, as previously discussed,
it showed he had consciousness of guilt, raising an inference that he sexually abused Jill.
See Lamerand, 540 S.W.3d at 261. Because evidence of King’s suicide was highly
probative of his own conduct, it also was in turn highly probative of Gabriel’s culpability
as a party to his conduct. See id. In addition, the jury was presented evidence that King
and Gabriel attempted to commit suicide together. Gabriel does not dispute that evidence
of her own suicide attempt was properly admitted. We conclude this factor weighs in favor
of admissibility. See Prible, 175 S.W.3d at 733.
27
Gabriel has not identified any reason to support a conclusion that the evidence
impressed upon the jury in some irrational yet indelible way or otherwise influenced the
jury to decide the case on an improper basis, and we have found none. 5 While evidence
of King’s suicide likely carried some emotional weight, we see no reason why this
evidence would irrationally influence the jury when considering the other emotionallycharged evidence that was presented to the jury. We conclude this factor weighs in favor
of admissibility. See id. We also conclude the time needed to develop the evidence
weighs in favor of admissibility because the State developed the evidence during its
cross-examination of Gabriel, which took up less than two pages of the 309 pages of
testimony found in the reporter’s record. See id.
Even without the evidence of King’s suicide, the State presented sufficient
evidence to convict Gabriel through Jill’s testimony because “[t]he uncorroborated
testimony of a child victim alone is sufficient to support a conviction for a sexual offense.”
Perez v. State, 689 S.W.3d 369, 378 (Tex. App.—Corpus Christi–Edinburg 2024, no pet.)
(citing TEX. CODE CRIM. PROC. art. 38.07(b)(1)). However, as previously mentioned, Jill’s
credibility was a central issue in the case because Gabriel’s primary defensive theory was
that no such sexual abuse occurred. As previously discussed, the State presented no
physical evidence pertaining to King’s acts of sexual abuse nor physical evidence of
Gabriel’s culpability as a party to his conduct. Thus, the State needed the evidence to
show King’s consciousness of guilt, which raised an inference that he sexually abused
5 We note that Gabriel did not conduct an analysis of the Rule 403 factors with respect to the
evidence of King’s suicide in her brief.
28
Jill and Jackie. See Hayden, 296 S.W.3d at 554. We conclude this factor weighs in favor
of admissibility. See Prible, 175 S.W.3d at 733.
Because all four non-exhaustive factors weigh in favor of admissibility, we hold the
trial court did not abuse its discretion in implicitly ruling that the probative value of King’s
suicide was not substantially outweighed by the danger of unfair prejudice. See De La
Paz, 279 S.W.3d at 343; Reyna, ___ S.W.3d ___, 2026 WL 842977, at *3; TEX. R. EVID.
403. Accordingly, we overrule Gabriel’s second issue.
3. Hallman’s Testimony Concerning Jackie’s Statement
In her third issue, Gabriel argues the trial court abused its discretion when it
refused to allow “impeachment of [Jill]’s testimony by evidence that [Jackie] had told
[Hallman] that [Jill] was lying, which harmed [Gabriel].” Gabriel further argues “[s]uch
testimony would have impeached the claim of both [Jill] as well as [Jackie] against both
[Gabriel] and [King].” We construe Gabriel’s argument as a challenge to the trial court’s
ruling sustaining the State’s hearsay objection regarding the excluded evidence.
“The hearsay doctrine, codified in Rules 801 and 802 of the Texas Rules of
Evidence, is designed to exclude out-of-court statements offered for the truth of the matter
asserted that pose any of the four ‘hearsay dangers’ of faulty perception, faulty memory,
accidental miscommunication, or insincerity.” Fischer v. State, 252 S.W.3d 375, 378 (Tex.
Crim. App. 2008); see also TEX. R. EVID. 801, 802. “The numerous exceptions to the
hearsay rule set out in Rules 803 and 804 are based upon the rationale that some hearsay
statements contain such strong independent, circumstantial guarantees of
trustworthiness that the risk of the four hearsay dangers is minimal while the probative
29
value of such evidence is high.” Fischer, 252 S.W.3d at 378. “The twenty-four hearsay
exceptions listed in . . . Rule 803 may be roughly categorized into (1) unreflective
statements, (2) reliable documents, and (3) reputation evidence.” Id. at 379; see also TEX.
R. EVID. 803. “The rationale for all of the exceptions is that, over time, experience has
shown that these types of statements are generally reliable and trustworthy.” Id. One such
exception is a statement against interest. See TEX. R. EVID. 803 (24).
“A witness’ prior inconsistent statement is admissible for impeachment, but as
substantive evidence of the truth of the matter asserted, it is inadmissible unless a
hearsay exception applies.” Lund v. State, 366 S.W.3d 848, 855 (Tex. App.—Texarkana
2012, pet. ref’d); see also TEX. R. EVID. 613(a). “Thus, when such a statement is offered
for impeachment, it is admitted only to show the witness has previously made an
inconsistent statement and, for that purpose, the evidence is not hearsay.” Id. A party
may impeach a witness with evidence of a prior inconsistent statement if the party first
presents the witness with the existence of the statement, the details and circumstances
surrounding the statement, and gives the witness the opportunity to explain or deny the
statement. TEX. R. EVID. 613(a). To be admissible under Texas Rule of Evidence 613(a),
a prior statement must be inconsistent with the one given at trial. Lopez v. State, 86
S.W.3d 228, 230 (Tex. Crim. App. 2002). If a party fails to establish this predicate, the
trial court should sustain an objection to extrinsic proof of the prior inconsistent statement.
Ferguson v. State, 97 S.W.3d 293, 296 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).
As demonstrated above, the State argued at trial the excluded testimony was
hearsay, and Gabriel responded it was admissible as a statement against Jackie’s
30
interest and a prior inconsistent statement “upon further exploration.” The trial court
sustained the State’s objection. While Gabriel appears to argue in her brief the excluded
testimony was impeachment evidence, she otherwise provides no analysis explaining
why that in and of itself shows the trial court erred in sustaining the State’s hearsay
objection. Further, Gabriel does not re-urge on appeal any of the arguments she made at
trial in response to the State’s objection. Specifically, Gabriel does not argue or provide
analysis concerning her assertion at trial that the excluded testimony was admissible as
a prior inconsistent statement under Rule 613(a). See Lund, 366 S.W.3d at 855
(recognizing that a prior inconsistent statement may be admissible for impeachment
purposes); TEX. R. EVID. 613(a) (setting out the requirements for admission of a witness’s
prior inconsistent statement). She also provides no argument or analysis concerning her
assertion that the excluded testimony was admissible as a statement against Jackie’s
interest. See TEX. R. EVID. 803(24). Under these circumstances, Gabriel has failed to
show that the trial court abused its discretion when granting the State’s hearsay objection.
See Reyna, ___ S.W.3d ___, 2026 WL 842977, at *3. Accordingly, we overrule Gabriel’s
third issue.
V. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
9th day of July, 2026.
31