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Date: 01-14-2017

Case Style:

Luis Rocha v. The State of Texas

Case Number: 05-15-01401-CR

Judge: David Bridges

Court: In The Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney:

John R. Rolater

Defendant's Attorney:





Stephanie Hudson  






Mark Heidenheimer  




Description: A jury convicted appellant Luis Rocha of assault of a family or household member, and
the trial court assessed punishment at forty years’ imprisonment.1 In a single issue, Rocha argues
the trial court abused its discretion by allowing in evidence of three extraneous bad acts, and the
admission of such evidence resulted in harm. We affirm the trial court’s judgment.
Rocha and complainant began dating in October 2013 and moved in together shortly
thereafter. At first, the relationship was “great,” but as it progressed, Rocha became more
controlling and argumentative over small things. He began taking complainant to work and
leaving with her car. He also broke several cellphones because he did not want her to have them.

On March 28, 2014, the couple visited Rocha’s grandmother. Rocha had been drinking
that evening and both consumed marijuana, methamphetamine, and cocaine. When they left
after midnight, he was driving complainant’s car. Rocha ran the car into a tree and wrecked it.
Complainant took over the wheel and then drove them back to their apartment. She immediately
went inside and hid both her car keys and wallet.
Complainant told Rocha she no longer wanted to date him, and he demanded her car
keys. She told him he would never find them. Rocha then punched her in the face. She tried to
cover herself with blankets on the couch, but Rocha continued to hit her head, chest, arms, legs,
and “anywhere that the punch would land.” He yanked her off the couch by her ankles and
continued punching her. At one point, he threw the coffee table at her.
Complainant decided if she went upstairs to her children’s bedroom Rocha would leave
her alone. She was wrong. He continued to angrily look for her car keys and forcibly pulled
down her pants and “checked inside” of her. He destroyed the bedroom and finally found the
keys and her wallet at the bottom of her clothes hamper.
Rocha then left with her keys and debit card, but complainant followed him outside and
tried to stop him because she did not want him to take her car. She managed to get her fingers
through the loop of the key ring, but Rocha pushed her to the ground. Rocha attempted to get the
keys back by biting her on her back and on her head. Complainant bit his finger and he finally
released the keys. He kicked her in the face and then left on foot.
According to complainant, Rocha’s brother and girlfriend were in the other bedroom
during the assault but did not help. When complainant asked to use their cell phone, they said it
was dead. She said neither was willing to help her in any way.2 She then walked to a nearby gas
station and called her mother for help. She did not call the police because she was scared for her 2 The girlfriend testified for the defense and contradicted some of complainant’s testimony regarding the events on the night in question.


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life based on previous threats by Rocha. Her mother picked her up and took her back to the
apartment. She then gathered as many belongings as she could for her and her children and left
with her mother.
Complainant’s sister eventually took her to the hospital because she was in so much pain.
Officer Tonia Walker went to the hospital and observed complainant’s injuries, including what
she described as bite marks on her back and scalp and bruising on various body parts.
Complainant later met with a detective and provided a statement.
Rocha was arrested for assault of a family or household member. A jury convicted him
of the offense, and the trial court assessed punishment at forty years’ imprisonment.
In a single issue, appellant argues the trial court abused its discretion by allowing the jury
to hear evidence of previous bad acts, which included (1) threatening complainant if she reported
him to police; (2) informing the jury he stole complainant’s debit card during the assault; and (3)
admitting complainant’s testimony that appellant offered to return her money if she signed an
affidavit of non-prosecution. Appellant alleges such evidence had nothing to do with the offense
of family assault and served no purpose other than to show he was “a criminal generally.” The
State responds the trial court properly admitted the evidence because it showed consciousness of
guilt and was part of same-transaction contextual evidence. Alternatively, the State argues
appellant was not harmed by the evidence.
We review the admission of extraneous offense evidence under an abuse of discretion.
Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). A trial court abuses its discretion
when its decision lies outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d
870, 879 (Tex. Crim. App. 2007).
“The general rule is that the defendant is to be tried only for the offense charged, not for
any other crimes or for being a criminal generally.” Segundo v. State, 270 S.W.3d 79, 87 (Tex.


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Crim. App. 2008). Evidence that does not have relevance apart from character conformity is
inadmissible. Casey, S.W.3d at 879; see also TEX. R. EVID. 404(b). However, extraneous
offense evidence is admissible under rule 404(b) if the extraneous offense evidence is relevant to
a fact of consequence apart from its tendency to show conduct in conformity with character.
Casey, 215 S.W.3d at 879.
Criminal acts that are designed to reduce the likelihood of prosecution, conviction, or
incarceration for an offense are admissible under rule 404(b) as showing “consciousness of
guilt.” Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994). A “consciousness of
guilt” is one of the strongest kinds of evidence of guilt; therefore, it is a well-accepted principle
that any conduct on the part of a person accused of a crime subsequent to its commission, which
shows such consciousness, may be received as a circumstance tending to prove he committed the
act with which he is charged. Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990,
no pet.). These include threats against witnesses and physical violence against witnesses.
Ransom, 920 S.W.2d at 299.
First, we conclude Rocha failed to preserve his complaint regarding testimony of his
previous threats against complainant. To preserve an issue for review, a party must make a
timely, specific objection. TEX. R. APP. P. 33.1. Although Rocha objected on several occasions
to such testimony, he failed to object every time the State asked complainant about the threats.
Specifically, Rocha failed to object when the State asked her questions about the threats on
redirect examination. Accordingly, because Rocha failed to object each time the alleged
inadmissible evidence was offered, he waived his argument. See Ethington v. State, 819 S.W.2d
854, 858–59 (Tex. Crim. App. 1991); Sustaita v. State, No. 14-09-00060-CR, 2010 WL
3418247, at *3 (Tex. App.—Houston [14th Dist.] Aug. 31, 2010, pet. ref’d) (mem. op., not


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designated for publication) (“[A] defendant must object each time an improper argument is
made, or he waives his complaint, regardless how egregious the argument.”).
Next, the trial court did not abuse its discretion by admitting testimony that Rocha left
complainant a voicemail after the attack in which he said he would give back the money he
withdrew from her account with her debit card if she agreed to sign a “nonprosecution affidavit
so that he wouldn’t get in trouble.” Such testimony falls within an exception to rule 404(b), as it
tended to show a consciousness of guilt, and therefore was properly received as a circumstance
tending to prove Rocha committed the act with which he was charged. See Torres, 794 S.W.2d
at 598 (evidence of defendant’s phone calls asking to drop charges admissible as consciousness
of guilt).
Finally, the trial court did not abuse its discretion by allowing complainant to testify that
Rocha stole her debit card during the assault. Extraneous offense evidence may also be
admissible as same-transaction contextual evidence, where “several crimes are intermixed, or
blended with one another, or connected so that they form an indivisible criminal transaction.”
Prible, 175 S.W.3d at 731 (quoting Rogers v. State, 721 S.W.2d 295, 301 (Tex. Crim. App.
1993)). In that situation, “the jury is entitled to know all relevant surrounding facts and
circumstances of the charged offense because an offense is not tried in a vacuum.” Id. (quoting
Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986)). Here, Rocha became angry
when complainant tried to end the relationship with him. His anger escalated when he could not
find the keys to her car. During his attempts to find the keys, he forcible searched in her pants
for them and finally found them in a clothes hamper with her debit card. He then left the
apartment with both items and continued to assault complainant outside when she tried to stop
him from leaving with her property. The theft of the debit card was part of the same criminal
transaction; therefore, it was admissible as an exception to rule 404(b).

Outcome:

Because the trial court did not abuse its discretion by admitting any of the complained-of testimony, we overrule Rocha’s sole issue. The judgment of the trial court is affirmed.

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