In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-24-00408-CR
DANIEL RINCONES, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1844115
Before Kerr and Walker, JJ., and Lee Gabriel (Senior Justice, Retired,
Sitting by Assignment)
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
A jury convicted Daniel Rincones of assault causing bodily injury to a family or
household member. See Tex. Penal Code § 22.01(b)(2)(A). The same jury acquitted
Rincones of assault upon a family member by impeding breath or circulation.
Id. § 2.01(b)(2)(B). The jury found the habitual offender allegation contained in the
indictment to be true and assessed punishment for assault causing bodily injury to a
family or household member at confinement in the Institutional Division of the Texas
Department of Criminal Justice for sixty-five years.
In his first point, Rincones contends that the trial court erred by admitting
extraneous-sexual-misconduct evidence in the guilt or innocence phase of trial
because the probative value of the evidence was substantially outweighed by its
prejudicial effect. In his second point, Rincones argues that “the trial court abused its
discretion when it violated the rules of evidence by allowing a State’s witness to testify
after witnessing the testimony of another State’s witness.” We affirm.
I. BACKGROUND
Tonya1 and Rincones met in 2015 while Rincones was incarcerated on a federal
hold awaiting sentencing. Tonya worked as a corrections officer at the facility where
Rincones was being held. The couple were married by proxy in 2017 while Rincones
was still incarcerated. Rincones was released from federal prison in October 2022 and
1
To protect the victim’s identity, we refer to her by a fictitious name. See Tex. App. (Fort Worth) Loc. R. 7.
2
reported to a halfway house the day after his release. Although he initially went to the
halfway house as ordered, Rincones lived with Tonya in Hurst from December 2022
to March 2023. Rincones was incarcerated again in 2023.
While Rincones was in prison in 2023, Tonya moved into a Budget Suites in
Grand Prairie. In June 2023, Tonya met her neighbor, Phillip Kurtz, when he
observed her trying to work on her car and offered to help. Kurtz testified that he
and Tonya developed a strong friendship based on shared experiences. They were
both Navy veterans. He further averred that Tonya talked about her husband
“[c]onstantly” and that his relationship with Tonya remained strictly platonic.
Rincones was scheduled to be released from prison on October 6, 2023. Kurtz
described a plan, that he and Tonya had agreed to, about how to handle Rincones’s
return. He testified that the plan was for him to meet with Rincones after his release
from prison, get him to sign divorce papers, and give him his property that had been
in Tonya’s possession. Instead, Tonya picked Rincones up in Dallas on October 7,
2023, with the intent of going to a bank to get divorce papers notarized. The bank
was not open, and although Tonya and Rincones were already arguing, she felt like
she had no choice but to drive him back to where she was residing at the Budget
Suites.
Upon arriving back at her residence, Tonya took her service dog outside and
encountered Kurtz in the parking lot. Kurtz explained that he was surprised when he
saw Tonya at about 10:00 a.m. looking “agitated” and “nervous” and that he noticed
3
her “hands were shaking.” He stated that was when he learned that Rincones was at
her apartment. Kurtz testified that Tonya returned to her residence after their short
conversation.
Kurtz explained that he waited about three hours and then went to Tonya’s
apartment to check on her. Kurtz described Tonya as still nervous but more
“subdued” and detailed that she was wearing different clothes from the first time he
saw her. He described her as wearing a “long-sleeved hoodie and pants.” Still uneasy,
Kurtz called 911 and asked for an officer to do a “welfare check.” He acknowledged
he saw a police officer go to Tonya’s residence and leave. After that, he related that
he felt he had utilized his “last option to make sure that she was okay.”
While at the Budget Suites, Tonya reported that the argument between her and
Rincones “changed from verbal to physical.” Ultimately, she called 911, and the
verbal argument between her and Rincones was recorded. The 911 recording
captured Tonya’s emotional state and her outcries of physical abuse by Rincones. It
also captured Rincones’s repeated statements that he was going back to prison.
Officer Brian Heymes was dispatched to the Budget Suites. He testified that, based
on the information conveyed to him concerning the 911 call, he believed there was an
“ongoing emergency” involving Tonya, the caller. He testified that he had arrived at
the Budget Suites approximately two minutes after the 911 call ended.
When the police arrived, Tonya and Rincones seemed to be leaving the
complex in her car, but they never actually left the parking lot. Tonya was
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immediately separated from Rincones so she could talk to the officer. Heymes
described Tonya’s demeanor as “angry, upset” and “very, very emotional.” Heymes
also described that Tonya had blood by her nose and mouth. Tonya explained to the
reporting officer that her husband had slapped her, shoved her, punched her, ripped
her “bodysuit” off her, “put his [penis] in her mouth,” and “choked her out.”
Rincones was arrested. During and after his arrest, Rincones made statements
to the arresting officer about what had occurred that day. Rincones reported that
Tonya had scratched and bit him, and he had to push her away.
Kurtz received a text from Tonya that prompted him to go outside and see her
and a police officer standing in front of the laundry room directly across from his
apartment. When Tonya moved to a closer location, Kurtz could see “that something
had impacted the left side of her face.” Kurtz drove Tonya to the hospital.
While at the hospital, Tonya was examined by Dr. Eudocia Cabello, who
worked as an emergency room doctor at the Dallas VA Medical Center. Cabello
explained the process of obtaining information from a patient, including the
complaints that had brought them to the hospital. She testified that Tonya had told
her what had occurred with her husband that day and that she had recorded those
complaints in a system where medical records were regularly maintained.
Before Cabello testified to the jury about what Tonya had told her, defense
counsel objected to the doctor’s records and to her testimony describing alleged
sexual assaults by Rincones during the same time frame as the October 7, 2023
5
physical abuse allegations. Specifically, counsel objected to the medical record that
read: “Patient also reports sexual assault by her husband today. She states that her
husband forced his penis in her mouth and also anal intercourse.” Counsel argued
that “[Rincones is] not charged with sexual assault. That’s highly prejudicial, and we
would ask that that part be stricken – or additionally redacted if this is going to be
admitted, as it would be more prejudicial than probative.”2
The trial court overruled the Rule 403 objection but gave an oral limiting
instruction to the jury on the use of extraneous offenses during the guilt or innocence
phase.3 Cabello then testified that Tonya had told her that “[her husband had] hit her
multiple times with his fist and open hand on her head, face, torso, and back.”
Cabello stated that Tonya had explained that her husband had also kicked her and
grabbed her in a “sleeper hold” position, which had caused her to pass out for a
minute. Tonya further explained that when she awoke, her husband was hitting her.
Tonya complained of left facial pain, left rib pain, left upper abdominal pain, back
pain, a headache, and dizziness. Cabello also testified that Tonya had reported that
her husband had sexually assaulted her that day by forcing his penis in her mouth and
by forcing anal intercourse.
2
The trial court pointed out to counsel that the police officer had already testified to Tonya’s allegation of sexual assault by forcing his penis into her mouth and that defense counsel had not objected under Rule 403 at that time.
3
A limiting instruction concerning the proper use of extraneous-offense evidence was included in the trial court’s written charge on guilt or innocence.
6
Cabello explained that after talking with Tonya, conducting a physical exam,
and reviewing a series of imaging diagnostic tests, her “clinical impression” was that
Tonya had suffered “a ‘closed head injury,’ facial contusions, [a] left eighth rib
nondisplaced fracture, and abdominal wall contusions.” The doctor concluded that
the injuries were consistent with the history provided by Tonya.
Neither the State nor the defense called Tonya as a witness in the guilt or
innocence phase of trial.4 The jury found Rincones not guilty of assault as alleged in
count one of the indictment and guilty of assault as charged in count two. After
accepting the verdict, the trial court asked the prosecutors if they intended to call
Tonya as a witness in the punishment phase. They responded that they did intend to
call her and agreed she needed to be sworn in as a witness. Both the State and
defense counsel agreed that Tonya was present in the courtroom during closing
arguments on guilt or innocence. The trial court recognized the fact that she was in
the courtroom, administered the oath, and advised her that she could not “discuss
4
Tonya testified in the punishment phase of the trial. During that testimony, Tonya admitted that prior to the trial, she had told defense counsel that “[she] would lie for [Rincones].” She admitted that while in jail, he had given her instructions on how to testify and specifically what to say to the jury. Tonya testified to many different types of abuse perpetrated by Rincones prior to the date of the alleged offenses on trial but explained that she would not try to stop him “because there was absolutely nothing [she] wouldn’t do for him.” For example, she described how she had allowed Rincones to use a knife to cut her and to carve the word “slut” on her left hip. She also testified that she was still seeing Rincones by going to “every visit [she] could.”
7
[her] testimony with any other witness or potential witness outside of this
courtroom.”
Shortly thereafter, defense counsel stated, “Your Honor, before we get too
deep into [Tonya], I believe that she was in here for jury – for closing arguments, and
the [R]ule has already been violated. She can’t testify.” Defense counsel argued that
while Tonya may not have heard the individual witnesses testify, she had heard the
summary of their testimony in closing arguments. Ultimately the trial court required
the prosecutors to detail the testimony they intended to elicit from Tonya and ruled
on each piece individually. At the conclusion of the individual rulings, the trial court
stated, “Everybody clear on my ruling? It’s a lot – lot of testimony and a lot of
various facts. But basically anything that has to do with October 7, the facts of
October 7, for which he’s under indictment in that whole day, you’re not getting into
that.”
Counsel for defense pursued an objection stating they wanted to be clear about
how “[the State] has deprived us of a fair trial” due to a violation of “the [R]ule.” The
trial court addressed defense counsel’s objection by stating, “Well, I’m not letting
[Tonya] testify to anything that was argued or shown in closing argument.” The trial
court asked defense counsel to explain how Tonya would be influenced by anything
she had heard in closing argument if she could not testify about the events of
October 7. Defense counsel then conceded that the issue would be “cured” if
“[Tonya] doesn’t testify to anything dealing with the date of the alleged offense.”
8
The habitual offender notice of the indictment was read before the jury and
Rincones pled “not true.” Following testimony on punishment, the reading of the
punishment charge, closing arguments, and deliberations, the jury found the habitual
offender notice to be true and assessed Rincones’s punishment at 65 years’
confinement in the Institutional Division of the Texas Department of Criminal
Justice. The trial court sentenced Rincones accordingly, and he appealed.
II. DISCUSSION
Rincones first complains that the trial court erred by overruling his Rule 403
objections to evidence showing that he had forced his penis into his wife’s mouth and
forced her to engage in anal intercourse during the same time period that he physically
assaulted her.5 Rincones asserts that the probative value of the extraneous sexual acts
is substantially outweighed by the danger of unfair prejudice.
III. STANDARD OF REVIEW
A trial court’s ruling on the admissibility of evidence is reviewed under an
abuse of discretion standard and will not be reversed if it is within the zone of
reasonable disagreement. Valadez v. State, 663 S.W.3d 133, 143 (Tex. Crim. App.
2022); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g);
Redmond v. State, 629 S.W.3d 534, 541 (Tex. App.—Fort Worth 2021, pet. ref’d). “We
5
In Rincones’s first point, he alleges that there was evidence admitted “showing that he had placed his sexual organ in his wife’s mouth and urinated in it and had anal sex with her against her will.” While there was testimony in the punishment phase of the trial that Rincones did urinate in Tonya’s mouth, that occurred in the time period between December 2022 to March 2023—not on October 7, 2023.
9
have long held that a trial court is entitled to broad discretion in ruling on a Rule 403
objection.” State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005); Montgomery,
810 S.W.2d at 378.
IV. RULE 403
Rule 403 allows 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 admissibility of
relevant evidence, and the presumption is that relevant evidence will be more
probative than prejudicial. James v. State, 623 S.W.3d 533, 546–47 (Tex. App.—Fort
Worth 2021, no pet.) (first citing Montgomery, 810 S.W.2d at 389; and then citing Emich
v. State, No. 02-18-00059-CR, 2019 WL 311153, at *7 (Tex. App.—Fort Worth
Jan. 24, 2019, pet. ref’d) (mem. op., not designated for publication). “It 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.” Id. at 547.
“Unfair prejudice” refers to a tendency to tempt the jury into finding guilt on grounds
apart from proof of the offense. Hart v. State, 688 S.W.3d 883, 894 (Tex. Crim. App.
2024); Mechler, 153 S.W.3d at 440. “Rule 403 serves to protect a criminal defendant
from unfair prejudice, not all prejudice.” Franklin v. State, No. 02-24-00386-CR,
2025 WL 2423514, at *2 (Tex. App.—Fort Worth Aug. 21, 2025, no pet.) (mem. op.,
10
not designated for publication). When undertaking a Rule 403 analysis, a trial court
must conduct a balancing test based on the following factors:
(1) the inherent probative force of the proffered item of evidence along
with (2) the proponent’s need for that evidence against (3) any tendency
of the evidence to suggest decision on an improper basis, (4) any
tendency of the evidence to confuse or distract the jury from the main
issues, (5) any tendency of the evidence to be given undue weight by a
jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will
consume an inordinate amount of time or merely repeat evidence already
admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–642 (Tex. Crim. App. 2006); Alami v. State,
333 S.W.3d 881, 889 (Tex. App.—Fort Worth 2011, no pet.).
Two witnesses made reference to extraneous-sexual-misconduct evidence—
Heymes and Cabello. Heymes testified that Tonya had told him that Rincones had
put his penis in her mouth during the physical altercation on October 7. The doctor,
who took a history from Tonya and examined her on October 7, included a sentence
in her medical records stating that Tonya had reported that she was sexually assaulted
that day by Rincones when he penetrated her mouth and anus with his penis. In two
sentences of her testimony, Cabello related that Tonya reported sexual assault and
stated that her husband had “forced his penis in her mouth and also anal intercourse.”
Rincones objected to the records and testimony based on Rule 403.
“Following a Rule 403 objection, the trial court has a nondiscretionary
obligation to weigh the probative value of the evidence against the unfair prejudice of
its admission.” Franklin, 2025 WL 2423514, at *2. Here the trial court explicitly
11
addressed that obligation when ruling on the objection by stating: “And I conducted a
balancing test, found the probative value is not substantially outweighed by the
prejudicial effect.”
The first and second elements of the Rule 403 analysis are often considered
together. “‘[P]robative value’ refers to the inherent probative force of an item of
evidence—that is, how strongly it serves to make more or less probable the existence
of a fact of consequence to the litigation—coupled with the proponent’s need for that
item of evidence.” Gigliobianco, 210 S.W.3d at 641.
At trial, the State argued that the extraneous sexual misconduct was relevant to
prove the nature of the abusive relationship between Rincones and Tonya. See Tex.
Code Crim. Proc. art. 38.371. In family violence prosecutions, Article 38.371
specifically allows “testimony or evidence regarding the nature of the relationship
between the actor and the alleged victim.” Id. art. 38.371(b). At trial, defense counsel
agreed that it was relevant to prove the nature of the relationship. On appeal,
Rincones argues, without authority or explanation, that the sexually-related evidence
occurring on the same date as the physical assault alleged in the indictment fails to
show the nature of the relationship between Rincones and Tonya “when one realizes
that the relationship in question has in reality been little more than periodic and
intermittent prison visits going back for six years.”
Although Tonya did not testify in the guilt or innocence phase of the trial, the
credibility of the statements she made to the officer and the doctor was attacked.
12
Further Rincones’s statements to the police were used to cast Tonya as the aggressor
and to argue that Rincones was merely defending himself. Extraneous-offense
evidence can be probative to rebut a defensive theory. See Johnson v. State, No. 07-25-00362-CR, 2026 WL 1657036, at *6 (Tex. App.—Amarillo June 8, 2026, no pet.)
(mem. op., not designated for publication); James, 623 S.W.3d at 548. At trial,
Rincones sought to undermine the allegations made by Tonya. The extraneousoffense evidence depicted the demanding nature of Rincones’s relationship with
Tonya and was probative to rebut the defensive strategy intended to attack the
credibility of Tonya’s statements to Heymes and Cabello and the assertion that she
was the aggressor. See Upchurch v. State, 656 S.W.3d 170, 179 (Tex. App.—Fort Worth
2022, no pet.); James, 623 S.W.3d at 548.
The State had a need for the extraneous evidence. First, the State could not
sponsor Tonya as a witness on guilt or innocence, and there was no other eyewitness
testimony regarding the alleged offenses. The extraneous-offense evidence was
probative to help the jury understand the control Rincones had over Tonya and to
help the jury understand why she was not testifying against him at that phase of trial.
See Gadsden v. State, No. 02-21-00195-CR, 2023 WL 2607559, at *7 (Tex. App.—Fort
Worth March 23, 2023, no pet.) (mem. op., not designated for publication); McDonnell
v. State, 674 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding
that defendant’s extraneous assaults against the victim were particularly relevant when
the credibility of the victim was a central issue and the need was high to explain why
13
the victim was unwilling to cooperate with the prosecution). The first two factors
weigh in favor of admission.
We now consider the third through fifth Gigliobianco factors—any tendency of
the evidence to suggest a decision on an improper basis, any tendency of the evidence
to confuse or distract the jury, and any tendency that a jury that has not been
equipped to evaluate the probative force of the evidence would give it undue weight.
The trial court gave the jury the following limiting instruction:
You are instructed that if there is any testimony before you in this case
regarding the defendant’s having committed crimes, wrongs, or acts
other than the crime alleged in the indictment in this case, you cannot
consider said testimony for any purpose unless you find and believe
beyond a reasonable doubt the defendant committed such other crimes,
wrongs or acts, if any were committed, and even then you may only
consider the same in determining the motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident
of the defendant, if any, in connection with the offense, if any, alleged
against him in the indictment or determining the nature of the
relationship of the parties, and for no other purpose.
We presume the jury obeyed the trial court’s limiting instruction. See Resendiz v.
State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003); Roe v. State, 660 S.W.3d 775, 785
(Tex. App.—Eastland 2023, pet. ref’d).
In arguing the third factor, Rincones states that “there are numerous cases
recognizing that extraneous-offense evidence in the form of sexually-related
misconduct of this nature can have a tendency to suggest a verdict on an improper
basis.” In this case, it is Rincones’s burden to show that the probative value is
substantially outweighed by the danger of unfair prejudice. See James, 623 S.W.3d at
14
547; Wells v. State, 558 S.W.3d 661, 669 (Tex. App.—Fort Worth 2017, pet. ref’d).
This generalized argument is not enough to meet the burden imposed under factor
three of Gigliobianco. This is particularly true in light of the fact that the jury found
Rincones not guilty of the more serious charge of assault by impeding breath. The
third factor weighs in favor of admissibility.
The fourth factor focuses on the potential of the extraneous-offense evidence
to confuse or distract the jury from the main issues. This factor weighs in favor of
admission because the evidence was probative of the nature of the relationship
between Rincones and Tonya. See Roe, 660 S.W.3d at 785. Rincones focuses his
argument on appeal on this factor to the presentation of “repetitive” extraneousoffense evidence that “consumed an inordinate amount of time and prosecutorial
effort.” In calculating the time needed to develop the extraneous-offense evidence,
we exclude hearings held outside the jury’s presence. Mechler, 153 S.W.3d at 441; Love
v. State, 706 S.W.3d 584, 616 (Tex. App.—Austin 2024, pet. ref’d). Defense counsel
requested and received multiple hearings outside the presence of the jury where
counsel argued against the admissibility of the extraneous-offense evidence. But in
front of the jury, the extraneous-offense evidence from October 7 came in through a
one-sentence reference in admitted medical records and very brief testimony from
Cabello and Heymes. The fourth factor weighs in favor of admission.
15
Rincones concedes on appeal that the fifth factor “leans toward admission”
and makes no further argument. Rincones failed to meet his burden of proof, and we
find that the fifth factor weighs in favor of admissibility.
In arguing factor six, Rincones repeats his assertion that the presentation of the
extraneous-offense evidence consumed an inordinate amount of time. This repetitive
argument is equally unavailing for factor six. We also weigh this factor in favor of
admitting the extraneous-offense evidence.
After measuring the trial court’s ruling against the relevant criteria, we find that
the trial court’s Rule 403 ruling fell within the zone of reasonable disagreement. We
overrule Rincones’s first point.
V. THE. RULE OF SEQUESTRATION
Rincones’s second point argues that “the trial court abused its discretion when
it violated the [R]ule by allowing a State’s witness to testify after witnessing the testimony
of another State’s witness.” (emphasis added.) Texas Rule of Evidence 614 provides
that “at a party’s request, the court must order witnesses excluded so they cannot hear
the other witnesses’ testimony.” Tex. R. Evid. 614. Even a witness not yet sworn or
admonished about the Rule violates it by listening to testimony in the case. Qualls v.
State, 547 S.W.3d 663, 677 (Tex. App.—Fort Worth 2018, pet. ref’d); Simon v. State,
No. 10-21-00277-CR, 2022 WL 17834323, *1 (Tex. App.—Waco Dec. 21, 2022, no
pet.) (mem. op., not designated for publication). The purpose for the rule of
16
sequestration is “to prevent the testimony of one witness from influencing the
testimony of another.” Webb v. State, 766 S.W.2d 236, 239 (Tex. Crim. App. 1989).
The State invoked “the [R]ule” immediately before calling the first witness.
Tonya did not testify in the guilt or innocence phase of trial and was not sworn or
advised of the Rule until after the jury’s verdict was accepted on guilt or innocence.
The State did not request that she be excluded from the Rule. Both the State and
defense counsel agreed she was in the courtroom during closing argument on guilt or
innocence.
Rincones argues that Tonya violated the Rule by witnessing the testimony of
another witness through hearing closing arguments that summarized that testimony.
Assuming, without deciding, that listening to closing argument is a violation of the
Rule, it is not necessarily reversible error. Archer v. State, 703 S.W.2d 664, 666 (Tex.
Crim. App. 1986); Qualls, 547 S.W.3d at 677. As discussed in detail above, after the
defense objection to Tonya’s testifying in punishment, the trial court required the
State to go through all questions that would be asked of Tonya and ruled on each
individually. Ultimately, the trial court ruled that Tonya could not be asked any
questions concerning the events of October 7, 2023, the date of the offenses on trial.
The closing argument on guilt or innocence revolved around the indictment’s
allegations that only occurred on October 7, 2023. After the court excluded any
testimony by Tonya concerning that date, defense counsel agreed that the issue would
17
be “cured” if “[Tonya] doesn’t testify to anything dealing with the date of the alleged
offense.”
A trial court has discretion to admit the testimony from a witness who violated
the Rule. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996); Qualls, 547 S.W.3d
at 677. An abuse of discretion occurs when the violation of the Rule impacts
testimony that harms or prejudices the defendant. Archer, 703 S.W.2d at 666.
Rincones’s argument on appeal was not that her punishment testimony was
influenced by hearing closing argument but instead that her testimony about events
totally unrelated to October 7, 2023 “negatively affected” his case and that the
extraneous offenses from times previous to that date were “extremely damaging.” In
this situation, the trial court’s exclusion of testimony that could potentially be
impacted from hearing a summary of the testimony of other witnesses “cured” the
harm that the Rule is designed to prevent. The trial court did not abuse its discretion,
and accordingly, we overrule Rincones’s second point.
VI. CONCLUSION
Having overruled both of Rincones’s points on appeal, we affirm the trial
court’s judgment.
/s/ Lee Gabriel
Lee Gabriel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 13, 2026
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