Opinion issued August 11, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00828-CR
FELIPE ARROYO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Case No. 1754900
MEMORANDUM OPINION
A jury found Felipe Arroyo guilty of the offense of continuous sexual abuse
of a child, and the trial court assessed his punishment at 50 years of imprisonment.
On appeal, he argues that we must reverse his judgment of conviction because:
1) the trial court made remarks concerning the backlog of criminal cases
during jury selection that were calculated to convey to the jury its opinion
of the case in violation of article 38.05 of the Code of Criminal Procedure;
2) these same jury selection remarks deprived Arroyo of his constitutional
right to due process and an impartial judge and violated his constitutional
right to be presumed innocent until proven guilty; and
3) the trial court erred in admitting into evidence over objection extraneous
offenses, as the State did not give the notice required by article 38.37 of
the Code of Criminal Procedure or Rule 404(b) of the Rules of Evidence.
We affirm.
BACKGROUND
Because of the nature of Arroyo’s appellate issues, we need not go into much
detail regarding the trial. In summary, his granddaughter testified that he repeatedly
molested her between the ages of six and ten. The State introduced the testimony of
five other female relatives, including the granddaughter’s mother, each of whom
testified that Arroyo likewise molested them when they were minors. Arroyo, who
was the lone defense witness, flatly denied molesting anyone. The jury sided with
Arroyo’s granddaughter and found him guilty of the offense of continuous sexual
abuse as alleged in the indictment. Arroyo appeals his resulting conviction.
DISCUSSION
I. The judge’s remarks during jury selection about the backlog of criminal
cases did not violate article 38.05 of the Texas Code of Criminal Procedure,
and they were harmless even if they could be construed as a violation.
During jury selection, the judge explained that, as a retired judge, he presided
over an emergency relief docket intended to deal with the backlog of cases:
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And let me explain to you that you’re not in the Criminal Justice
Center building, you understand that. You’re in what we call the Family
Law Center, because years ago that’s the only thing that was handled
in this building, the family law cases, divorces, adoptions, anything of
that nature.
But since we have new judges that have been appointed all the
courtrooms over there are taken. So they’ve made room in this building
for what we call the ERD, emergency relief docket courts, and these
courts are presided over by retired judges such as myself.
Now, none of the judges in these three courts are elected. They’re
all retired. It’s good for the county because what we do in these courts
is try to help out the elected judges. As I’m sure all of you are aware,
the criminal justice system throughout the United States is
overburdened with cases. So there’s a tremendous backlog. And we’re
doing what we can here in Harris County with these three courts to help
out the other courts to make an effort to reduce the backlog.
Now, I had a prospective juror ask me one day when we were
doing this, he said when do you think you’re going to get caught up?
And I said, well, when people quit breaking the law I guess is when
we’ll get caught up. So until then, we’re doing our best to try to reduce
the backlog and at least try to keep up with the cases, new cases that are
being filed.
Arroyo argues that these remarks conveyed the judge’s opinion of the case to
the jury, specifically that Arroyo was guilty of the charged offense. See TEX. CODE
CRIM. PROC. art. 38.05 (judge shall not “make any remark calculated to convey to
the jury his opinion of the case” before jury returns its verdict).
Our court has already rejected the same argument with respect to materially
indistinguishable remarks about the backlog of cases made during jury selection by
the same judge. See Rodriguez v. State, 728 S.W.3d 228, 232 (Tex. App.—Houston
[1st Dist.] 2025, pet. ref’d) (judge said backlog would persist until people quit
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breaking law). There, our court held that these remarks do not violate article 38.05
because they do not convey an opinion about the case at hand. See id. at 233–34.
This case might be distinguishable on another ground. Here, Arroyo disputed
whether a crime had occurred. Whereas in Rodriguez, our court’s holding was
premised in part on the fact that the defendant only disputed that he was not the one
who committed the charged crime. See id. One could argue that remarks about the
backlog of cases and its cause—the continuous commission of crimes—take on a
different resonance when a defendant disputes that a crime has taken place at all,
rather than disputing he committed an undisputed crime.
But this is a distinction without a difference in this instance. On the record
before us, the judge’s remarks that the backlog would persist so long as crimes
continued to be committed did not convey an opinion one way or another about
whether Arroyo had committed the crime charged. As phrased, the judge’s backlog
remarks were about a systemic criminal justice problem, not this particular case.
With reference to this particular case, the judge told the jury panel that the
grand jury’s indictment charging Arroyo was “not evidence of guilt” and had no
bearing on whether he was guilty or not guilty. In addition, the judge stated that, just
like the jury panel, he had not heard any evidence and did not know anything about
the case at this point. Given these additional remarks made during jury selection, no
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reasonable panel member could have understood the judge’s statements about the
backlog of cases to be an expression of his opinion about this case.
In any event, in Rodriguez, our court further held that the judge’s materially
indistinguishable remarks were harmless even if they could somehow be construed
as violating article 38.05. See id. (no substantial and injurious effect or influence on
jury’s verdict). The same is equally true on the record before us in this case.
Here, the judge emphasized during jury selection that “an individual charged
with any kind of crime is presumed innocent until the State proves the case,” which
it had to do “beyond a reasonable doubt”—the “highest burden of proof in our legal
jurisprudence.” And this presumption was restated in the jury charge as well.
When, as here, the jury is properly instructed on the presumption of
innocence, and nothing in the record shows that the empaneled jurors said they could
not or did not abide by this instruction, any ostensible article 38.05 error is not
reversible because it cannot be said to have adversely affected the jury’s verdict. See
id.; see also Irsan v. State, 708 S.W.3d 584, 605–07 (Tex. Crim. App. 2025) (judge’s
remark in jury selection that case being “solved” resulted in publicity was harmless,
given that judge went on to emphasize presumption of innocence and none of jury
panel who heard remark indicated that they could not follow law as to presumption).
We overrule Arroyo’s first issue.
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II. Our court’s binding decision in Rodriguez likewise disposes of Arroyo’s
complaints that the judge’s backlog remarks violated his right to due
process and an impartial judge and his right to be presumed innocent.
In Rodriguez, the defendant made the same arguments Arroyo does about due
process, judicial impartiality, and the presumption of innocence. See 728 S.W.3d at
234 (premising these same arguments on materially indistinguishable backlog
remarks). Our court rejected these arguments on the ground that any ostensible error
was harmless. See id. at 234–38. Once again, the same is equally true in this case.
As in Rodriguez, the trial judge’s backlog remarks were brief and made a
single time. The judge did not tie these remarks to Arroyo’s case in particular. Later
in jury selection, the judge told the jury panel that the grand jury’s indictment was
not evidence of guilt, that Arroyo was presumed innocent, and that the outcome of
the trial would turn on whether the jury found that the State carried its burden to
prove he had committed the charged offense beyond a reasonable doubt. These
principles were reiterated in the jury charge after the jury heard the evidence.
In short, this record refutes the notion that the judge’s backlog remarks
harmed Arroyo or that he suffered the kind of prejudice that could justify reversal.
We thus reject his due process, impartiality, and presumption of innocence claims.
See id. (rejecting same claims premised on same basic remarks on same basis).
We overrule Arroyo’s second issue.
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III. The State’s failure to give timely notice of its intent to introduce some of the
extraneous-offense evidence admitted at trial did not affect Arroyo’s
substantial rights; thus, we cannot reverse his conviction on this ground.
Finally, Arroyo argues that the State failed to timely notify him of its intent to
call some of the witnesses who testified about extraneous offenses, and that the trial
court abused its discretion in allowing these witnesses to testify due to the lack of
required notice. We assume for argument’s sake that Arroyo is correct. Even so, we
hold that any such error is harmless because the record does not show that Arroyo’s
trial strategy would have differed in any way had he received the required notice.
Of the five female relatives who testified that Arroyo also molested them
when they were minors, Arroyo complains that the State notified him of its intent to
call three of them as witnesses only on the day of jury selection. These witnesses are
AB, EA, and VA, each of whom testified that he touched them on several occasions
in ways that constituted the offense of indecency with a child by sexual contact when
they were very young children. See TEX. PENAL CODE § 21.11(a)(1), (c).
AB’s and EA’s testimony was admitted under article 38.37 of the Code of
Criminal Procedure, and VA’s testimony was admitted under Rule 404(b) of the
Rules of Evidence. The former provision allows in extraneous 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 defendant.”
TEX. CODE CRIM. PROC. art. 38.37, § 2(b). The latter provision allows this evidence
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in “for another purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.” TEX. R. EVID.
404(b)(2). Article 38.37 always requires the State to provide advance notice of its
intent to introduce extraneous offenses in its case-in-chief. See TEX. CODE CRIM.
PROC. art. 38.37, § 3 (requiring at least 30 days’ notice before trial). When, as here,
a defendant requests it, Rule 404(b) also requires advance notice. See TEX. R. EVID.
404(b)(2) (requiring “reasonable notice before trial” when requested).
Here, it is undisputed that the State gave summaries of its interviews with AB,
EA, and VA to the defense almost nine months before trial. It is also undisputed that
the defense was aware of the extraneous offenses disclosed in the summaries. But
the State did not expressly tell the defense that it intended to call AB, EA, and VA
as witnesses to testify about these extraneous offenses in its case-in-chief.
In these circumstances, Court of Criminal Appeals precedent suggests that the
provision of these interview summaries might not satisfy Rule 404(b)(2)’s notice
requirement. In Hayden v. State, the Court held that the provision of interview
summaries could satisfy that rule’s notice requirement if the summaries were
provided soon after the defense’s request for notice or if the defense did not dispute
that it understood the summaries were intended to provide such notice. 66 S.W.3d
269, 272–73 (Tex. Crim. App. 2001); see also Buchanan v. State, 911 S.W.2d 11,
15 (Tex. Crim. App. 1995) (State’s open-file policy did not give notice required by
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Rule 404(b)(2) because mere access to its file containing extraneous evidence does
not convey State’s intent to introduce this evidence in its case-in-chief). Here,
however, the State provided the interview summaries to the defense more than three
years after the defense requested notice, and the defense denied that it understood
the provision of these summaries as notice that AB, EA, and VA would testify. Nor
does the defense’s denial ring hollow. Notably, the State provided interview
summaries for two others (RR and LB) whom it did not call as trial witnesses.
Similarly, the State’s provision of the summaries arguably might not satisfy
the notice requirement of article 38.37 under these circumstances. See TEX. CODE
CRIM. PROC. art. 38.37, § 3 (requiring “notice of the state’s intent to introduce in the
case in chief” extraneous offenses, not merely the existence of these offenses).
But we need not decide whether the State timely gave notice here. Because
assuming for argument’s sake the State did not, its failure to do so was harmless.
We may not reverse a trial court for an error that is not constitutional in nature
unless the error affected the appellant’s substantial rights. TEX. R. APP. P. 44.2(b).
The erroneous admission of extraneous-offense evidence without notice is not
constitutional in nature. See McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim.
App. 2005) (“no constitutional error is involved when evidence of uncharged
misconduct is admitted without notice,” so Rule 44.2(b) standard applies here).
When, as in this case, the appellant’s complaint concerns lack of notice, “we look
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only at the harm that may have been caused by the lack of notice and the effect the
lack of notice had on the appellant’s ability to mount an adequate defense.” Id.
Arroyo asserts that the lack of notice here prevented him from preparing for
trial because he “was surprised by the substance of the evidence.” But in the trial
court, his counsel conceded that he had received the interview summaries and was
aware of their contents almost nine months before trial. Given this concession, he
cannot claim that he was surprised by the substance of these witnesses’ testimony.
Arroyo also asserts that “the lack of notice affected his ability to prepare crossexamination or mitigating evidence.” But he does not specify additional questions
that his counsel would have asked on cross-examination or identify any mitigating
evidence he could have offered had he been given greater notice. Nor does Arroyo
explain how greater notice would have meaningfully altered his trial strategy.
Arroyo was already aware that his trial would include testimony about
extraneous offenses from two witnesses (NL and JV) who were timely disclosed.
Thus, he knew trial was not going to be a simple he said, she said swearing match
between him and his granddaughter. Extraneous offenses were in the mix all along.
At trial, Arroyo presented an all-or-nothing defense in which he flatly denied
all wrongdoing. Defense counsel’s primary tactic on cross-examination appeared to
be challenging the witnesses’ recall of the details surrounding their accusations.
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Arroyo does not explain how his defense would have differed if he had greater notice
of the additional extraneous offenses about which AB, EA, and VA testified.
On this record, nothing suggests that Arroyo’s trial strategy would have
differed if the State had given him greater notice of its intent to call AB, EA, and
VA as witnesses. Hence, the asserted lack of notice did not affect his substantial
rights and is not a basis for reversal. See id. at 578–79 (erroneous admission of
uncharged conduct was harmless as appellant had opportunity to cross-examine
witness, whom defense tried to discredit by challenging her ability to remember
details, and notice would not have affected defense strategy); Martines v. State, 371
S.W.3d 232, 249–50 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (similar).
We overrule Arroyo’s third issue.
CONCLUSION
We affirm the trial court’s judgment.
David Gunn
Justice
Panel consists of Chief Justice Adams and Justices Gunn and Johnson.
Do not publish. TEX. R. APP. P. 47.2(b).
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