Ruben Fernandez, Jr. v. The State of Texas

Fernandez was initially indicted on August 26, 2015, then re-indicted on May 18, 2016,

having been charged with committing the two offenses referenced above. Both offenses were

alleged to have been committed on or about April 25, 2015, against the same victim, Cynthia

Flores, by means of striking her with a clothing iron. During pre-trial proceedings, the trial court

entered a discovery order that required the State to give written notice seven days before trial of

any extraneous offenses that it intended to introduce in its case-in-chief. On October 27, 2015,

Fernandez also filed a request for notice of any extraneous acts that the State intended to use and

requested that any notice be given not later than seven days in advance of the start of trial. Prior

to trial, the State filed a series of notices to the defense that detailed the extraneous acts it would

potentially use during both the guilt and punishment phases of trial. The State�s notices alleged

over a dozen unreported bad acts committed by Fernandez against Flores which were characterized

as demonstrating, �[c]ontinuous physical, verbal and emotional abuse; [against] victim [Cynthia

Flores][.]�

2

Guilt Phase of Trial before Opening Statements

Trial commenced on the morning of Monday, September 11, 2017, and both sides

2 The State�s notices included the following alleged bad acts by Fernandez: (1) making a false report to law

enforcement, the victim of which was Cynthia Flores, on or about April 25, 2015; (2) committing an act of criminal

mischief against Cynthia Flores on or about April 25, 2015; (3) assaulting Cynthia Flores on or about August 3, 2015;

(4) taking Cynthia Flores� prosthetic eye; (5) destroying Cynthia Flores� prosthetic eye; (6) throwing Cynthia Flores�

prosthetic eye; (7) assaulting Cynthia Flores in the presence of her family; (8) assaulting Cynthia Flores in the presence

of Fernandez� family; (9) assaulting Cynthia Flores by placing his hand in her mouth; (10) assaulting Cynthia Flores

by striking her head; (11) assaulting Cynthia Flores by head-butting her; (12) forcing Cynthia Flores to sign a nonprosecution affidavit; (13) forcing Cynthia Flores to quit her job; (14) accusing Cynthia Flores of sleeping around;

(15) telling Cynthia Flores that he did not want her daughter to live with them; and (16) threatening Cynthia Flores by

pointing a gun at her daughter.

3

announced ready. After a twelve-person jury and one alternate juror were empaneled and sworn,

the jurors received preliminary instructions and then departed for their lunch break. Outside the

jury�s presence, the State then requested a forfeiture-by-wrongdoing hearing under article 38.49

of the Code of Criminal Procedure.3

The State informed the court that Cynthia Flores, the alleged

victim, had failed to appear for trial that morning despite having been served with a subpoena

compelling her attendance which included a duces tecum requiring Flores to also bring her

daughter, A.F., to court.4

In requesting a hearing, the State asserted it could establish through

witness testimony that wrongdoing on the part of Fernandez had led to Flores� non-appearance for

trial. Based on article 38.49, the State argued that Fernandez should forfeit his right to object to

the admissibility of any prior statements by Floresso as not to benefit from his alleged wrongdoing.

Before witnesses were called, the parties engaged in a lengthy discussion with the court

about Flores� non-appearance and the alleged conduct by Fernandez that would be considered

relevant to the scope of the hearing. During this colloquy, the State gave its first indication on the

record that it had sought and obtained a writ of attachment from the trial court earlier that morning

commanding the arrest of Flores and for her to be immediately brought to the court once she was

taken into custody. When asked to respond, defense counsel primarily focused on evidentiary

concerns he had with the State�s evidence relevant to its request for a forfeiture by wrongdoing.

3

Under the long-standing common law doctrine of forfeiture by wrongdoing, a defendant is barred from asserting

either Confrontation Clause or hearsay objections to the admission of an out-of-court witness�s statements where the

defendant wrongfully procured the unavailability of the witness. See Colone v. State, 573 S.W.3d 249, 264-65 (Tex.

Crim. App. 2019); see also Schindler v. State, No. 02-17-00241-CR, 2018 WL 4924946, at *3 (Tex. App. � Fort

Worth Oct. 11, 2018, pet. ref�d) (mem. op., not designated for publication). In Texas, this doctrine has been codified

in article 38.49 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.49.

4 To protect the identity of Flores� minor daughter, this opinion will refer to the child as A.F. See TEX. R. APP. P.

9.10(a)(3), (b)-(d).

4

Rather than seek a forfeiture hearing, defense counsel suggested that the State could request a writ

of attachment as their appropriate remedy to address Flores� absence from trial. The trial court

then acknowledged having earlier signed a writ of attachment as requested by the State. Defense

counsel responded by objecting to the prolonged delay caused by the proposed hearing given that

the State had earlier announced ready for trial. The trial court asked whether defense counsel had

thought that the State had witnesses ready for trial. Counsel responded that he knew there was a

possibility that Flores would not cooperate with the State as she had expressed to him her desire

of not wanting �to go through with this case.� Contrary to the State�s argument, however, defense

counsel indicated he would assert to the court that Flores was afraid to appear because she had

given a false statement to the police about the events in question.

Proceeding with the hearing, the State called a witness who worked for the District

Attorney�s Office assigned to victims� assistance, among others, to establish that Fernandez

engaged in conduct designed to cause Flores not to be present for trial. The victim assistance

witness testified that Flores had five to ten contacts with her over the course of many months and

during those occasions Flores had described ongoing incidents of abuse against her, but also at

times recanted the allegationsshe made of having been abused. For example, the witness described

that on one occasion she received an email purportedly from Flores (albeit with Fernandez� email

address) stating that she wanted the charges dropped as she was back with Fernandez and they

were doing great. But later, when Flores came into her office in person, she denied sending the

email and claimed it had been sent by Fernandez himself. The State�s witness testified that Flores

signed an affidavit attesting that she had not sent the email in question. The witness also testified

that on another occasion Flores had revealed to her that she had signed a non-prosecution statement

5

in which she claimed she had lied about Fernandez hitting her and she had wanted the charges

brought against him dropped. The witness testified that Flores told her she had injured herself

while working or something of that nature. The last contact with Flores occurred in October of

2016, or eleven months prior.

During the hearing, when the trial court asked defense counsel if he had any objection to

admitting the copy of the writ of attachment which had been issued (State�s Exhibit 2), defense

counsel expressed his concern at how the writ had been signed by the court without his knowledge

and outside his presence, but he sought no ruling from the court nor lodged an objection:

Well, Judge, I mean, no objection to State�s 2 for the purposes of this

hearing, but I�m a little bit puzzled, as defense counsel, as to how the prosecutors

were approaching the Judge to sign the writ of attachment and the defense counsel

was not present and was not made aware that a writ of attachment had even been

signed until later on this morning. So, clearly, I�ve got some additional questions

about, I mean, how that whole process came about. We had no idea until about an

hour ago, Judge.

But for the purposes of this hearing and that specific exhibit, no, I don�t

object but later on I will have an objection, Judge.

At the close of the hearing, the trial court denied the State�s request for forfeiture based on

insufficient evidence to show conduct by defendant designed to keep the complainant from

appearing. Nonetheless, even though the trial court denied the forfeiture by wrongdoing, the court

thereafter recessed the proceeding until the next morning to give the State time to attach Flores

pursuant to the writ that had been issued hours earlier.

The next morning on September 12, the defense announced ready for trial, but the State

did not. The State instead requested a continuance until Friday, September 15, for additional time

to locate Flores and A.F. Defense counsel objected to the continuance, but the trial court, noting

its concern about jeopardy attaching if it declared a mistrial, granted a recess until Friday.

6

On the morning of Friday, September 15, the defense announced ready for trial, and the

State once again announced that it would be requesting a continuance pursuant to a motion it filed

that same morning. The State requested more time to locate Flores and A.F. The trial court held

a hearing on the continuance, but the hearing was abruptly cut short when the State brought a

detective into the courtroom to inform the court that the El Paso Police Department had just then

found Flores and A.F. at a hotel. The court then excused the detective to allow him to proceed

with the writ of attachment. Defense counsel then renewed his concern about the trial court�s

issuance of the writ of attachment and objected that proper procedures were not followed as

required by the Code of Criminal Procedure. Defense counsel more specifically argued that the

trial court did not follow the proper procedure under article 24.12 of the Code in that the court did

not require the State to articulate on the record the grounds for its motion for writ of attachment

and �articulate sufficient information about the expected testimony to show materiality.� While

arguing, defense counsel asserted that the Court of Criminal Appeals had interpreted article 24.12

as requiring counsel, when seeking a writ, to assert on the record the grounds for his or her motion

and the expected testimony of the witness being attached to show materiality. See Sturgeon v.

State, 106 S.W.3d 81, 90 (Tex. Crim. App. 2003).

Responding, the State asserted that Fernandez had no standing to contest or question any

subpoena issued by the State for its witnesses or for a writ of attachment for the complaining

witness. During the ensuing dialogue, the trial court noted its understanding that issuance of a writ

of attachment was a matter of right so long as a witness was duly served with a subpoena and failed

to appear, and the court explained its belief that the showing of materiality, as discussed in

Sturgeon v. State, applied to the preservation requirements when the court has denied a request for

7

a writ of attachment. The court then overruled defense counsel�s objection to the issuance of the

writ. At this point, attorney Nicole Maesse appeared before the Court having been informed by

defense counsel that her client, Cynthia Flores, would likely testify soon in the proceeding.

Attorney Maesse informed the trial court that she currently represented Flores on an unrelated

charge of criminal trespass that did not involve Fernandez, and which allegedly occurred a year

and five months after the two charges that were filed against Fernandez. Discussion ensued about

issues that could arise during Flores� expected testimony. Shortly before recessing to await return

of the jury, the court informed the parties she had received notice that Cynthia Flores and her

daughter A.F. had arrived. Arrangements were made for attorney Maesse to speak with the State

and Flores about the intended scope of Flores� testimony.

When court reconvened outside the jury�s presence, attorney Maesse requested that the

court appoint her to represent Flores for purposes of providing her with assistance during her

expected trial testimony. The trial court permitted this request. The State then informed the court

that Flores expressed anger at being brought to court and had claimed that the allegations against

Fernandez were based on lies she had made up.

5 The State further indicated that even though it

had only just begun speaking with A.F., the minor child had thus far divulged that both her mother

and Fernandez had been trying to keep her and her mother hidden away so that they would not be

available to testify. A.F. also said that her mother asked her to lie if she was called as a witness.

The State also disclosed that A.F. had thereafter described a series of extraneous bad acts

5 The State further informed the trial court that it did not believe that Flores had lied about the incident or that she hit

herself. The State then informed the court and Fernandez� counsel and attorney Maesse that it would not prosecute

Flores for perjury�whether for statements made to law enforcement, at the time of the investigation, or at trial�

despite her expected recantation.

8

committed by the defendant against her and her mother. While acknowledging that neither side

was previously aware of the alleged incidents, the State confirmed its intention to introduce

evidence of any extraneous bad acts committed by the defendant of which it newly learned and

that it would be disclosing further details to the defense as quickly as possible. Defense counsel

responded that the timing of any disclosures would be unbelievably disadvantageous to Fernandez

because it caught counsel by �utter surprise� and would not give counsel adequate opportunity to

prepare a defense. Defense counsel requested a continuance, and the trial court denied the request

based on the impact of the continuance on the victims in the case. Instead, the trial court brought

A.F. to the witness stand in order to give both sides an opportunity to determine how she might

testify by examining her outside the presence of the jury.

A.F., who was thirteen years� old and in the seventh grade at the time of trial, testified

about how her mother and Fernandez, along with the help of two of Fernandez� children, conspired

to keep A.F. and Flores hidden so they could not be brought to court, believing that �[if] they don�t

find us until Friday, this case is going to be dropped.� She also testified that Flores had told A.F.

to lie and not say anything about the allegations against Fernandez. After testifying about her

knowledge of Fernandez� charged offenses, A.F. then testified about multiple extraneous bad acts

committed by Fernandez against her mother, and defense counsel was allowed to cross-examine

her about those matters.

After A.F. testified, the parties and trial court agreed to recess until Monday morning.

However, before the parties left for the day, the trial court excused one of the jurors for medical

reasons without objections from either side, and the court replaced that juror with the alternate

juror who had previously been sworn with the other jurors. Pending the resumption of trial on

9

Monday, September 18, the trial court detained Flores in the El Paso County Jail pursuant to the

writ of attachment and allowed A.F. to leave with Flores� sister. Addressing Flores, the trial court

stated it had determined that Flores had violated a court order and that she had taken extreme

measures including keeping her child from school in an effort to avoid testifying despite having

been subpoenaed. Noting that the trial court had expended resources to ensure Flores� attendance,

the court determined it was necessary to further detain her to ensure her attendance. No objections

were made by any parties and the trial court then recessed until Monday.

Guilt Phase of Trial after Opening Statements

Trial resumed on Monday, September 18.6

During the State�s opening statement, Juror

Garcia interrupted and expressed that he was �feeling a little sick.� The trial court retired the jury.

After a recess, the trial court stated on the record that the juror said he had gotten lightheaded and

felt as though he was going to faint. When the trial court asked the juror if he wanted to go home,

he said that he did not want to leave. After another recess, the trial court stated that the court staff

made a call to emergency medical services to check on the juror�s vitals because he was not feeling

better. After yet another recess, the trial court stated in the presence of both the State and defense

that the juror described his condition as one where he felt �shaky, nervousness and wanting to

faint.� The bailiff had given the juror something to eat in case the issue was caused by blood sugar,

but even after eating and after emergency medical services confirming that the juror�s vitals were

okay, the juror did not feel better. The trial court then informed both parties that the court was

going to excuse the juror as being disabled. The trial court stated that someone was going to drive

6 The record shows that attorney Linda Perez of the El Paso County Public Defender�s Office appeared on behalf of

Cynthia Flores and remained present until the conclusion of Flores� testimony.

10

to the courthouse to pick up the juror because he was in such an ill state that he did not feel he

could drive himself from the courthouse.

Defense counsel objected to proceeding with only eleven jurors and requested a mistrial

because �we believe that not less than 12 jurors can render and return a verdict in a felony criminal

case.� When the trial court asked counsel to further refine his objection as to proceeding with only

eleven jurors, counsel stated, �we think that it is premature to maybe release this juror.� Defense

counsel cited to article 36.29 of the Code of Criminal Procedure for his argument. Defense counsel

also began to ask if the juror had already left the building when the trial court interrupted and stated

that it was not going to make the juror sit for the trial because, based on the trial court�s personal

observations of the juror, �[h]e is clearly sick,� and �the health of that juror clearly is compromised

and he cannot participate in this trial.� The trial court further stated, �[t]here is no question in my

mind that he is disabled under the definitions provided in the case law.� After the interjection,

defense counsel reiterated only his objection under article 36.29, and the court overruled the

objection. Opening statements continued, and Flores was then brought into the courtroom as the

State�s first witness.

Witness Testimony

Flores testified on direct examination that she and Fernandez had been in a common-law

marriage for four years and were still together at the time of trial. Fernandez began living with

Flores on the day they met, and the two lived together with A.F. When the State asked Flores to

tell the jury about her relationship with Fernandez, Flores testified that she had a good relationship

with Fernandez even though they would argue at times and would have �ups and downs.� The

State then asked Flores to �tell us a little bit more about the downs of your relationship,� and Flores

11

testified that she had a history of mental health issues and would sometimes get in her �moods.�

The State then asked, �So if any problems arise in your relationship, you�re going to say that

they�re your fault?� Flores responded affirmatively.

Flores further testified on direct that she remembered speaking to police on April 26, 2015

and making a false police report. She described that a day earlier she and Fernandez had gotten

into an argument at their home, and Fernandez decided to move out. She then went to a friend�s

home where she drank to the point of intoxication before going to her brother�s home, even though

she did not remember how she got to his home. Flores testified that she only remembered in

general what she told police or how they were contacted. However, she remembered that she was

at work on that day, and when she arrived home from work, part of her argument with Fernandez

was about him wanting her to quit her job. In addition, she remembered telling officers that

Fernandez hit her with an iron, but she explained that the allegation was false. She also testified

that she got a bruise on her arm that day while using the walk-in freezer at work.

Flores further testified on direct that she spoke with representatives from the District

Attorney�s Office and told them that she lied about Fernandez hitting her with an iron. Although

she acknowledged receiving a subpoena for herself and a subpoena requiring her to bring A.F. to

court, as well, Flores testified that she did not come to court because A.F. was sick and had cramps.

Flores explained that she and A.F. then got a hotel room on Tuesday, September 12, �[b]ecause I

wanted to,� and that they stayed there all week until Friday, September 15, when detectives found

them.

On cross-examination, Flores testified that she was diagnosed as bipolar and had posttraumatic stress disorder, anxiety, and depression. She had been diagnosed with these mental-

12

health conditions since 2008 and prescribed medication at that time. Flores testified that she would

get into bad moods and get agitated when she did not take her medication. She also affirmed that

she and Fernandez had a good relationship. Flores testified that she did not want Fernandez to

move out because he was the breadwinner of the two and supported both of them financially. After

their argument on the day of the charged offense, Flores took his vehicle because she did not have

one of her own. Flores further explained on cross-examination that the freezer door at her

workplace was very heavy and that the door slammed on her arm.

After cross-examination, the State informed the trial court that it intended to introduce

evidence of extraneous offenses by Fernandez because �the door�s been opened a few times

through cross-examination[.]�

7

The court also observed that evidence of the nature of the

relationship between Flores and Fernandez appeared to be relevant due to the content of Flores�

testimony thus far. Defense counsel objected to the admission of any extraneous offenses and

asserted that he did not raise any defensive theory not first elicited by the State, explaining, �if

they�re going to argue that I opened it, they were surely knocking awfully hard . . . They can�t

open the door themselves, and then be surprised if I ask a question or two about it, Judge. Because

that�s what�s happened here.� The trial court ruled that A.F. would be allowed to testify about

Fernandez� extraneous offenses against Flores.

When called by the State, A.F. told the jury that her mother did not want her to testify. She

told the jury that she and her mother had been staying at a hotel during the week leading up to her

7 Earlier in the morning during one of the recesses taken to address Juror Garcia�s condition, the trial court discussed

with the parties the possible admissibility of Fernandez� extraneous offenses. That morning, the State had filed two

mid-trial supplemental notices of extraneous offenses in which it detailed the newly-discovered offenses described by

A.F. and filed a memorandum in support of their admission. During the conversation amongst the trial court and both

sides, defense counsel acknowledged having received the State�s filings the night prior.

13

testimony because her mother was trying to avoid being tracked down and brought to court, and

her mother also kept her out of school for that entire week. A.F. testified that Fernandez initially

treated her mother well when they first met, but Fernandez� behavior later changed. A.F. next

described a series of incidents she had witnessed between her mother and Fernandez.

Around July 2014, A.F. heard her mother and Fernandez arguing, and when A.F. went to

use the restroom, A.F. saw Fernandez punching her mother while her mother was trying to get

Fernandez off of her. Then, around November 2014, A.F. and her mother were asleep in the same

room when Fernandez began banging on the door. When A.F.�s mother opened the door,

Fernandez began yelling at her and punching her. Later, around May 2017, A.F.�s mother said

something to Fernandez that �set him off,� and Fernandez began beating her mother. After A.F.

ran to her room, her mother walked into the room with a busted lip and with her hair messed up.

Around August 2017, A.F.�s mother and Fernandez were arguing, and Fernandez pulled out a �BB

gun� on her mother. When A.F. went to the garage to feel safer, she heard the gas from the stove

turn on and heard her mother screaming and telling him to stop. Throughout the time A.F. and her

mother lived with Fernandez, A.F. saw her mother injured with �[b]ruises, black eyes, swollen

lips, like cuts on her face�on her face, bloody noses.� A.F. also heard Fernandez threaten to kill

her mother multiple times during their fights.

When asked directly about events of April 25, 2015, A.F. first described that she had earlier

moved in with her grandmother because she had felt unsafe living with her mother and Fernandez.

That evening she received a call on her cell phone from her mother, who A.F. described as

sounding �[f]rustrated, emotional . . . [l]ike rushed . . . [s]he�s yelling.� On the call, as her mother

cried and seemed frustrated, mad, and emotional, she described to A.F. what had just occurred.

14

A.F. testified that her mother said, �[Fernandez] beat me and he hit me with an iron. I�m at my

friend�s house and I need someone to come pick me up right now.� A.F. hung up and told her

grandmother about the call. Later that same evening, A.F. testified that her uncle Pat came to her

grandmother�s home, but she was excluded from their conversation and had no further contact that

day from her mother.

After A.F. concluded, the remainder of the State�s case consisted of testimony from Flores�

brother, Patrick, and from Officer Mendez, who responded to Patrick�s call to 911. Patrick testified

that he received a frantic call from Flores on the afternoon of April 26, 2015. He described her

voice as scared and stuttering. Flores uttered, �He beat me. He hit me with an iron.� Patrick asked

for her location, and when he arrived at her house, he saw that her face had some swelling and she

had a bruise on her forearm. After the two arrived at Patrick�s home, Patrick called 911. Once

Officer Mendez arrived on scene, he spoke to both Flores and Patrick separately, and he took a

photograph of the bruise on Flores� left arm. The next day, on April 27, Patrick took Flores back

to her shared home with Fernandez. At the home, Patrick described how he saw broken bottles

and what appeared to be the remnants of a scuffle in the kitchen. He also saw Flores� clothes on

the floor with bleach poured on them.

Once the State rested its case-in-chief, Fernandez admitted a copy of a 911 call he made

on the evening of the same day as his charged offenses. In his call, Fernandez claimed that Flores

had stolen his vehicle and phone about forty minutes prior to him calling 911. He further explained

on the call that the two had gotten into an argument and that, even though Flores might claim he

assaulted her, he reported that neither one of them had struck the other.

The Verdict and Punishment

15

The jury convicted Fernandez of both counts as charged. After Fernandez pleaded true to

felony enhancements alleged in the indictment on each count, he was subjected to a first-degree

felony punishment range for the aggravated-assault count and to a second-degree felony

punishment range for the family-violence count. See TEX. PENAL CODE ANN. �� 12.42(a), (b);

22.01(a)(1), (b)(2)(A); 22.02(a)(2), (b). In addition to introducing multiple judgments showing

other offenses Fernandez had committed, the State had A.F. and Flores� sister testify generally

about how Fernandez threatened to rape and kill A.F., kept A.F. in fear, and kept Flores in an

isolated, abusive situation. Flores also testified in the punishment phase of trial. Flores

acknowledged that she should have protected her daughter A.F., but instead she always put

Fernandez first. And while she did not expressly acknowledge having earlier lied to the jury in

the guilt phase of the trial, Flores testified that even though she loved Fernandez she felt tired of

the hiding and of having to go through pain caused by his abusive conduct. She testified that

Fernandez would say, �Sorry. I�m not going to do it again. And it keeps happening, his drinking.

He has a problem.�

After deliberating, the jury assessed his punishment at forty years� confinement for the

aggravated-assault count and twenty years� confinement on the family-violence count. As to each

count, the jury also assessed a maximum fine of $10,000. The trial court sentenced Fernandez in

accordance with the jury�s verdicts and ordered his sentences to run concurrently. Fernandez then

filed his notice of appeal.

DISCUSSION

Issue 1: Whether the Alleged Ex Parte Communication Violated Due Process

In his first issue, Fernandez argues that the trial court violated Canon 3(B)(8) of the Code

16

of Judicial Conduct by engaging in an ex parte communication regarding the State�s request for a

writ of attachment which thereby deprived him of his right to an impartial judge and a fair trial.

In response, the State asserts that: (1) the trial court did not violate its duty to remain impartial by

engaging in an ex parte communication that did not involve a discussion of the merits of the case;

and (2) assuming arguendo that the complained-of communication was improper, Fernandez failed

to show he was prejudiced by the trial court�s failure to address the matter in his presence. Because

we find that Fernandez has failed to demonstrate any harm or reversible error on this issue, we

disagree with his argument and expressly decline to needlessly weigh in on whether the nature or

extent of the challenged conduct resulted in an improper ex parte communication.

Standard of Review

To determine whether a violation of the Code of Judicial Conduct amounts to reversible

error, we must examine the record as a whole to determine whether the trial judge engaged in

impropriety that was harmful. See Erskine v. Baker, 22 S.W.3d 537, 540 (Tex. App. � El Paso

2000, pet. denied); Soto v. State, No. 08-05-00227-CR, 2007 WL 4214399, at *6 (Tex. App. � El

Paso Nov. 29, 2007, no pet.) (not designated for publication).

Alleged Violations of the Code of Judicial Conduct

Canon 3(B)(8) of the Texas Code of Judicial Conduct addresses ex parte communications

and provides as follows:

A judge shall accord to every person who has a legal interest in a proceeding, or

that person�s lawyer, the right to be heard according to law. A judge shall not

initiate, permit, or consider ex parte communications or other communications

made to the judge outside the presence of the parties between the judge and a party,

an attorney, a guardian or attorney ad litem, an alternative dispute resolution

neutral, or any other court appointee concerning the merits of a pending or

impending judicial proceeding. A judge shall require compliance with this

subsection by court personnel subject to the judge�s direction and control. This

17

subsection does not prohibit:

(a) communications concerning uncontested administrative or uncontested

procedural matters . . . .

TEX. CODE JUD. CONDUCT, Canon 3(B)(8), reprinted in TEX. GOV�T CODE ANN., tit. 2, subtit. G,

app. B. The purpose of prohibiting ex parte communications is to ensure all legally interested

parties are given their full right to be heard under the law and to ensure equal treatment of all

parties. Abdygapparova v. State, 243 S.W.3d 191, 207 (Tex. App. � San Antonio 2007, pet. ref�d);

Smallwood v. State, No. 08-12-00215-CR, 2014 WL 4269155, at *6 (Tex. App. � El Paso Aug.

29, 2014, pet. ref�d) (not designated for publication).

The Fourteenth Amendment provides that the State may not �deprive any person of life,

liberty, or property, without due process of law[.]� U.S.CONST. amend. XIV; see also TEX.CONST.

art. I, � 19 (�No citizen of this State shall be deprived of life, liberty, property, privileges or

immunities, or in any manner disenfranchised, except by the due course of the law of the land.�).

Due process requires a neutral and detached hearing body or officer. Brumit v. State, 206 S.W.3d

639, 645 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)). A

defendant is entitled to a fair trial before a judge with no actual bias against the defendant or interest

in the outcome of the case. Avilez v. State, 333 S.W.3d 661, 673 (Tex. App. � Houston [1st Dist.]

2010, pet. ref�d) (citing Bracy v. Gramley, 520 U.S. 899, 904-05 (1997)). Accordingly, a judge

should not act as an advocate or adversary for any party. Dockstader v. State, 233 S.W.3d 98, 108

(Tex. App. � Houston [14th Dist.] 2007, pet. ref�d). However, most complaints about a judge or

the conduct of a trial do not implicate constitutional due process protections. See Avilez, 333

S.W.3d at 673-74.

Mere violations of the Code of Judicial Conduct alone do not constitute reversible error,

18

and even unethical conduct is not necessarily a legal ground for reversal of a criminal conviction.

Wesbrook v. State, 29 S.W.3d 103, 121 (Tex. Crim. App. 2000); Kemp v. State, 846 S.W.2d 289,

305 (Tex. Crim. App. 1992); see also Serrano v. State, No. 08-17-00190-CR, 2019 WL 1922753,

at *9 (Tex. App. � El Paso Apr. 30, 2019, no pet.) (not designated for publication). This is because

the Code is designed to provide guidance to judges and to provide a structure for regulating conduct

through the State Commission on Judicial Conduct. Merritt v. Davis, 331 S.W.3d 857, 863 (Tex.

App. � Dallas 2011, pet. denied); Serrano, 2019 WL 1922753, at *9. For reversal on the grounds

of judicial misconduct, there must be judicial impropriety, coupled with probable prejudice to the

complaining party, and rendition of an improper verdict. Erskine, 22 S.W.3d at 539; Soto, 2007

WL 4214399, at *4. And for complaints regarding alleged ex parte communications, no prejudice

is shown where the appellant fails to point to record support showing that the communications

influenced the court�s decision-making. See Acevedo v. State, No. 04-10-00025-CR, 2011 WL

1044402, at *5-6 (Tex. App. � San Antonio Mar. 23, 2011, pet. ref�d) (mem. op., not designated

for publication); cf. Waller v. State, No. 01-02-00799-CR, 2004 WL 306032, at *4 (Tex. App. �

Houston [1st Dist.] Feb. 19, 2004, no pet.) (mem. op., not designated for publication).

Application

Even assuming that an improper ex parte communication occurred�which we do not

decide�Fernandez would nonetheless be required to further show judicial impropriety, coupled

with probable prejudice to him, and rendition of an improper verdict. At trial, defense counsel

asserted that the writ of attachment had been issued without notice to Fernandez and without

compliance with procedures required by article 24.12 of the Code of Criminal Procedure. More

particularly, defense counsel complained about the State failing to articulate information on the

19

record about the expected testimony of the witness to be attached to show materiality. Notably,

however, Fernandez did not show how his lack of presence at the time of the alleged

communication with the court regarding the non-compliance of a complaining witness in

responding to a trial subpoena had caused prejudicial harm to him or how his presence would have

made a difference in the trial court�s ruling. See Acevedo, 2011 WL 1044402, at *5-6 (holding

that a single, unfortunate ex parte communication to the trial judge did not necessarily indicate the

court�s abandonment of its role as an impartial judge where nothing in the record supported an

assertion that the communication to the judge influenced the judge�s decision-making); see also

Erskine, 22 S.W.3d at 539-40; Soto, 2007 WL 4214399, at *6 (cases overruling appellants�

complaints regarding the trial judge�s ex parte communications where the appellants failed to show

how the communications may have resulted in the rendition of an improper judgment or verdict);

cf. Waller, 2004 WL 306032, at *3-4 (rejecting contention that administrative judge erred in

denying motion to recuse presiding judge of the trial court where the presiding judge�s ex parte

discussion of the defendant�s bond with the court�s bailiff did not result in a change of defendant�s

bond and therefore did not show that a reasonable person, knowing all the circumstances involved,

would harbor doubts as to the impartiality of the court).

Based on Fernandez� failure to demonstrate probable prejudice on his alleged ground of

judicial impropriety, we hold that there could be no reversible error here. See Erskine, 22 S.W.3d

at 539; Soto, 2007 WL 4214399, at *4; see also Wesbrook, 29 S.W.3d at 121; Kemp, 846 S.W.2d

at 305; Serrano, 2019 WL 1922753, at *9. For this reason, we overrule Fernandez� first issue.8

8

In his brief to this Court, Fernandez argues that the trial court�s alleged ex parte communication with the State led

to the court�s failure to maintain �an attitude of impartiality throughout the trial,� and he lists eighteen actions taken

by the court throughout the course of the trial that he believes demonstrate the resulting unfairness. However, as stated

20

Issue 2: Whether the Trial Court Erred in Granting the Writ of Attachment

In his second issue, Fernandez argues that the trial court erred in granting the writ of

attachment for Flores and A.F. where the requirements for such a writ under articles 24.12 and

24.111 of the Code of Criminal Procedure were not met. As a result, Fernandez argues that

testimony from the attached witnesses, Flores and A.F., should have been excluded under article

38.23 of the Code of Criminal Procedure and that his substantial rights were prejudiced.9

In

opposing, the State first acknowledges on appeal that Fernandez is correct when he states that

revised procedures delineated in articles 24.12 and 24.111 of the Code, which went into effect

eleven days before trial, were not followed by the trial court.

10

See Act of April 5, 2017, 85th Leg.,

R.S., ch. 292, � 3, 2017 Tex. Gen. Laws 541, 542 (codified at TEX. CODE CRIM. PROC. ANN. art.

24.12 and 24.111). Specifically, the State acknowledges that new provisions require that before a

writ of attachment can be issued, a court hearing has to be held, and the involved witness has to be

assigned a court-appointed attorney to protect his or her interests. Here, the State acknowledges

by him in his brief, his complaint arises solely from the communication itself regarding issuance of the writ of

attachment. And none of the listed actions address nor demonstrate how the trial court�s ruling on issuance of the writ

of attachment, specifically, would have changed had Fernandez been given an opportunity to participate in the alleged

ex parte communication. Notably, Fernandez never asserts nor questions the materiality or lack thereof of Flores�

expected testimony. Therefore, we find those eighteen instances inapt to our harm analysis and insufficient to

demonstrate the sort of prejudice he needed to show to carry his evidentiary burden.

9 Although the writ of attachment commanded only that Flores be brought to court, we will assume for purposes of

this appeal that it also conferred authority for an attaching officer to bring A.F. to court, as well, since Flores disobeyed

the subpoena duces tecum requiring her to bring A.F. to court. Furthermore, both parties in this appeal address the

issue as one which contends that exclusion of testimony from both Flores and A.F. was at stake by resolution of the

issue. For the reasons discussed below, we conclude that the outcome of the issue would not change regardless of

whether Fernandez could properly challenge the testimony of either one or both witnesses that were affected by the

attachment.

10 The record shows that the State believed that it was entitled to the writ of attachment upon a mere showing that

Flores had been duly served and failed to appear. Similarly, the trial court granted the writ of attachment based on its

understanding that the attachment of a witness who had been duly served was a matter of right regardless of whether

requested by either the State or the defense.

21

that no writ-of-attachment request supported by affidavit was filed, no hearing was held, and no

attorney was appointed to assist Flores at the time of the State�s initial request for issuance of the

writ of attachment. Nonetheless, despite these deficiencies, the State argues that Fernandez�

argument is without merit for the following reasons: (1) that Fernandez mistakenly argues as

though the State�s writ-of-attachment request had been denied; (2) that Fernandez waived his

complaint on appeal because he did not raise the same objection at trial; (3) that Fernandez fails

to cite to any authority to support his position that a failure to follow procedures that were meant

to protect victims should result in the exclusion of testimony from Flores and A.F. pursuant to the

exclusionary rule; (4) that Fernandez lacked standing to challenge the procedures because the

legislature did not intend to protect defendants when it enacted these procedural changes and any

claim that the legislative changes were not adhered to belonged to Flores, not Fernandez, as his

own personal rights were not implicated; and (5) that concerns for the attached witness that the

newly enacted procedures were meant to address were honored by the trial court and Fernandez

was not harmed by the lack of a hearing on the State�s writ-of-attachment-request. Because we

hold that Fernandez did not establish he had any standing�under his article 38.23 theory of

exclusion�to complain about the State�s failure to comply with writ-of-attachment-requirements

that were enacted for the protection of a trial witness, we address the standing argument but we

need not address the State�s alternative responses.

Writs of Attachment

An �attachment� is a writ issued by the clerk of a court, or other authorized person, in a

criminal action commanding some peace officer to bring the witness to court to testify for either

the State or the defendant. TEX. CODE CRIM. PROC. ANN. art. 24.11. Article 24.12 of the Code of

22

Criminal Procedure provides the authority for issuance of writs and sets forth the requirements for

how a request for such writ must be made:

When a witness who resides in the county of the prosecution has been duly served

with a subpoena to appear and testify in any criminal action or proceeding fails to

so appear, the attorney representing the state or the defendant may request that the

court issue an attachment for the witness. The request must be filed with the clerk

of the court and must include an affidavit of the attorney representing the state or

the defendant, as applicable, stating that the affiant has good reason to believe, and

does believe, that the witness is a material witness.

TEX. CODE CRIM. PROC. ANN. art. 24.12. If issuance of an attachment is requested for a witness

younger than 18 years, the request must likewise include the applicable affidavit from the

requesting party described by article 24.12. TEX. CODE CRIM. PROC. ANN. art. 24.011(a), (b-1).

As stated earlier, effective September 1, 2017, article 24.111 of the Code of Criminal

Procedure, was amended to require a hearing be held before issuance of a writ of attachment. Act

of April 5, 2017, 85th Leg., R.S., ch. 292, � 3, 2017 Tex. Gen. Laws 541, 542 (codified at TEX.

CODE CRIM. PROC. ANN. art. 24.111). As amended, a writ of attachment may only be issued by

the judge of the court in which the witness is to testify if the judge determines, after a hearing, that

the issuance of the attachment is in the best interest of justice. TEX. CODE CRIM. PROC. ANN. art.

24.111(b). In making this determination, the judge shall consider the affidavit of the attorney

representing the state or the defendant, as applicable, that was submitted with the request for

issuance of the attachment. TEX. CODE CRIM. PROC. ANN. art. 24.111(c). Lastly, the court shall

appoint an attorney to represent the witness at the hearing under subsection (b), to include

representing the witness at a hearing conducted outside the presence of the witness. TEX. CODE

CRIM. PROC. ANN. art. 24.111(d).

Article 38.23 Standing

23

Texas Code of Criminal Procedure article 38.23 provides that no evidence obtained by an

officer or other person in violation of the laws or Constitutions of Texas or the United States shall

be admitted in evidence against the accused on the trial of any criminal case. TEX. CODE CRIM.

PROC. ANN. art. 38.23(a). The purposes underlying both the federal exclusionary rule and article

38.23 are the same: to protect a suspect�s privacy, property, and liberty rights against overzealous

law enforcement. Wilson v. State, 311 S.W.3d 452, 459 (Tex. Crim. App. 2010).

In a series of early opinions, the Court of Criminal Appeals affirmed the principle that the

right to complain because of an illegal search and seizure is a privilege personal to the wronged or

the injured party and is not available to anyone else. Fuller v. State, 829 S.W.2d 191, 202 (Tex.

Crim. App. 1992), overruled on other grounds by Riley v. State, 889 S.W.2d 290, 301 (Tex. Crim.

App. 1993). A defendant therefore has no standing to complain about evidence seized in violation

of Texas law unless the defendant�s rights were invaded by the seizure. Chavez v. State, 9 S.W.3d

817, 819 (Tex. Crim. App. 2000); Fuller, 829 S.W.2d at 201-02; Cazares v. State, No. 08-15-

00266-CR, 2017 WL 3498483, at *13 (Tex. App. � El Paso Aug. 16, 2017, pet. ref�d) (not

designated for publication); see also State v. Huse, 491 S.W.3d 833, 839 (Tex. Crim. App. 2016)

(�A person who is aggrieved by an illegal search and seizure only through the introduction of

damaging evidence secured by a search of a third person�s premises or property has not had any

of his Fourth Amendment rights infringed.�); Neal v. State, 256 S.W.3d 264, 284 (Tex. Crim. App.

2008) (�A defendant has no standing to raise a constitutional challenge to another person�s

confession.�).

In Chavez v. State, the case involved a situation in which a police officer�who was

authorized by an agreement between several counties to investigate controlled-substance

24

violations in the participating counties�made an undercover buy of cocaine from Chavez in a

county that was not a party to the agreement. Chavez, 9 S.W.3d at 818. The Court of Criminal

Appeals emphasized that Chavez claimed the cocaine should have been suppressed �solely because

[the officer] obtained it from her outside the geographical boundaries set out in the Agreement.

[Chavez] alleged no violation of any of her rights.� Id. The Court rejected Chavez�s argument and

held that only the parties to the agreement had standing to complain about the breach of the

agreement. Id. at 819.

In Fuller v. State, the Court of Criminal Appeals similarly held that article 38.23 did not

require suppression of an incriminating audiotape that Fuller had given to a fellow inmate, that

was stolen by a third inmate, and that was given by the third inmate to prison officials. Fuller, 829

S.W.2d at 201-02. The Court held that the theft of the tape by the third inmate from the second

inmate did not violate any of Fuller�s rights. Id. at 202. Fuller thus did not have standing to

complain about the theft, and article 38.23 did not require the tape�s exclusion. Id.

Application

Here, although the State concedes that newly applicable procedures were not followed

which are directed at protecting witnesses from being attached absent a showing of materiality,

Fernandez asserts a complaint on appeal based not on a violation of his own rights but on the

alleged violation of the rights of another, namely, the right of witness Flores to be free of a seizure

that was non-compliant with statutory authority. We view this situation as being analogous to

those addressed in Chavez and Fuller where the Court of Criminal Appeals rejected complaints

regarding violations of rights not belonging to the defendants, and thus, the Court reaffirmed the

longstanding principle that a defendant does not have standing to assert the rights of a third party.

25

See Chavez, 9 S.W.3d at 819; Fuller, 829 S.W.2d at 202.

On review, we conclude that Fernandez made no showing at trial of an invasion of his own

rights to establish he had standing to complain of the State�s use of the writ of attachment to secure

the attendance for trial of complaining witness Flores. He likewise offered no explanation as to

how such an invasion of his rights could have occurred under these circumstances. Due to his

failure to establish any violation of his own personal rights, we hold that he does not have standing

to challenge the propriety of the trial court�s issuance of the writ of attachment here. See, e.g.,

Chavez, 9 S.W.3d at 819; Fuller, 829 S.W.2d at 201-02; see also Blue v. State, Nos. 02-17-00265-

CR, No. 02-17-00266-CR, No. 02-17-00267-CR, 2018 WL 6844134, at *10-11 (Tex. App. � Fort

Worth Dec. 31, 2018, pet. ref�d) (mem. op., not designated for publication) (rejecting argument

that fruits of a grand jury subpoena for insurance-claim records should have been suppressed

where, even assuming the documents were obtained in violation of Texas law, the State did not

subpoena information from the defendant and, rather, subpoenaed the documents from the

insurance companies of two other individuals and thus holding there was no invasion of the

defendant�s rights to establish standing); cf. Chavis v. State, No. 08-10-00026-CR, 2011 WL

3807788, at *5 (Tex. App. � El Paso Aug. 26, 2011, pet. ref�d) (not designated for publication)

(holding that the defendant did not have standing to challenge whether the proper procedures were

followed to give a grand jury the power to issue a subpoena where the defendant did not have a

reasonable expectation of privacy in the information sought through the subpoena).

Even though newly enacted procedures were not complied with in this instance, we note

that the record here shows that as soon as Flores arrived in court she was allowed to meet with her

own attorney who requested afterward that she be granted permission to further represent Flores

26

in regard to her appearance at trial. The trial court made the appointment and allowed Flores�

attorney to advocate for her and to remain present throughout her testimony for her sole benefit.

No objections were raised at any time about the lack of materiality of Flores� testimony nor her

detention pursuant to the writ�s issuance, by either Flores herself, by means of her appointed

counsel, or by Fernandez. On this record, we conclude that Fernandez wholly failed to establish

how his own rights were violated in this instance. We thus conclude that Fernandez has not shown

he had any standing to complain of the lack of a hearing on the State�s initial request for a writ of

attachment against Flores nor of the trial court�s issuance of said writ. We therefore overrule

Fernandez� second issue presented for review.

Issue 3: Whether the Trial Court Erred in Admitting the Extraneous Offense Evidence

In his third issue presented for review, Fernandez argues in a two-part complaint that the

trial court erred in admitting testimony from A.F. during the guilt phase of trial that included

extraneous offenses by Fernandez against Flores. First, he argues that the complained-of evidence

was inadmissible because it had no relevance apart from character conformity. Second, he argues

that the evidence was inadmissible due to the insufficient notice he was given of the State�s intent

to introduce newly-revealed evidence in the guilt phase of trial.

11

Fernandez argues that both errors

were harmful and require reversal.

Regarding the first part of Fernandez� complaint, the State responds that the complainedof evidence had relevance apart from character conformity and was admissible because: (1) it

rebutted his defensive theories that he and Flores had a good relationship, that her mental-health

11 In this sub-part of his issue, Fernandez� complaint relates only to the unreasonable timing of the State�s notice and

not to any unreasonableness in the specificity of acts given in the notice.

27

issues were responsible for the discord in their relationship, and that she fabricated the allegations

against him; and (2) it assisted the jury in understanding the nature of the relationship between

Fernandez and Flores by shedding light on the reasons for Flores� recantation. Regarding the

second part of Fernandez� complaint, the State responds that notice of its intent to admit the

evidence was not deficient because: (1) the evidence qualified as rebuttal evidence and the State

therefore was not required to give advance notice of it; and (2) even if the evidence did not so

qualify, the State gave reasonable notice where it notified him immediately upon its discovery.

Additionally, the State responds that admission of the evidence, if error, was nonetheless harmless.

We ultimately hold that the extraneous-offense evidence was admissible for non-characterconformity purposes under article 38.371 of the Code of Criminal Procedure and that, assuming

the State�s notice of intent to admit it was deficient, the admission of the evidence even with

deficient notice was harmless. Therefore, we need not address the State�s alternative arguments

addressing Fernandez� third issue.

Standard of Review

A trial court�s ruling on the admissibility of extraneous offenses is reviewed under an

abuse-of-discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).

As long as the trial court�s ruling is within the zone of reasonable disagreement, we will uphold

the ruling. Id. at 343-44. Furthermore, we will uphold the trial court�s ruling if it is correct on any

theory of law applicable to the case. Id. at 344.

Part 1: Relevancy of Extraneous-offense Evidence

Article 38.371

Generally, extraneous-offense evidence is not admissible at the guilt phase of trial to prove

28

that a defendant committed the charged offense in conformity with his own bad character. TEX.

R. EVID. 404(b)(1); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). But extraneousoffense evidence may be admissible when it has relevance apart from character conformity. TEX.

R. EVID. 404(b)(2); Devoe, 354 S.W.3d at 469; Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009).

Article 38.371 of the Code of Criminal Procedure provides an avenue for the admissibility

of �all relevant facts and circumstances� that would assist the trier of fact in determining whether

a defendant committed certain family-violence-related offenses as follows:

(b) In the prosecution of an offense described by Subsection (a), subject to the

Texas Rules of Evidence or other applicable law, each party may offer testimony

or other evidence of all relevant facts and circumstances that would assist the trier

of fact in determining whether the actor committed the offense described by

Subsection (a), including testimony or evidence regarding the nature of the

relationship between the actor and the alleged victim.

(c) This article does not permit the presentation of character evidence that would

otherwise be inadmissible under the Texas Rules of Evidence or other applicable

law.

TEX. CODE CRIM. PROC. ANN. art. 38.371(b), (c). Areas of relevant and admissible extraneousoffense evidence that complies with article 38.371 include evidence that: (1) explains why a victim

of domestic violence is unwilling to cooperate with prosecution; (2) confirms the victim�s initial�

and later recanted�statements to police; or (3) contextualizes the nature of the relationship

between victim and assailant. See, e.g., Gonzalez v. State, 541 S.W.3d 306, 312 (Tex. App. �

Houston [14th Dist.] 2017, no pet.); Williams v. State, No. 02-18-00382-CR, 2019 WL 2223214,

at *3 (Tex. App. � Fort Worth May 23, 2019, no pet.) (mem. op., not designated for publication).

Application

As previously observed, while Flores testified about her relationship with Fernandez, she

29

recanted allegations she had made against Fernandez. She also acknowledged she had received a

subpoena for herself and for A.F. but she did not respond to either one. Flores� testimony thus

made the extraneous-offense evidence relevant to explain why she was unwilling to cooperate with

the prosecution at trial, to confirm her initial story to police, and to contextualize the nature of her

relationship with Fernandez. See Gonzalez, 541 S.W.3d at 310-12; Williams, 2019 WL 2223214,

at *3. Even if Flores� testimony had not placed these three areas of subject matter squarely within

the realm of relevance, article 38.371 shows on its face a legislative determination that �testimony

or evidence regarding the nature of the relationship between the actor and the alleged victim� is

automatically one of the contemplated and non-exhaustive �relevant facts and circumstances�

under the article. See, e.g., Exezidis v. State, No. 14-17-00087-CR, 2018 WL 1278503, at *6 (Tex.

App. � Houston [14th Dist.] Mar. 13, 2018, pet. ref�d) (mem. op., not designated for publication)

(observing that the plain language of article 38.371 makes evidence regarding the nature of the

relationship between the actor and the alleged victim relevant and thus the court reasons that �[h]ad

counsel objected on relevance grounds, the trial court may have determined that [the victim�s]

testimony was relevant to the nature of the couple�s relationship and, therefore, admissible�);

Bunton v. State, No. 05-17-01244-CR, 2018 WL 6695732, at *4 (Tex. App. � Dallas Dec. 20,

2018, no pet.) (mem. op., not designated for publication) (holding the same); Hammond v. State,

No. 10-17-00178-CR, 2018 WL 1866053, at *2 (Tex. App. � Waco Apr. 18, 2018, no pet.) (mem.

op., not designated for publication) (same).

We thus uphold the trial court�s decision to admit the extraneous-offense evidence because

it was admissible under article 38.371 of the Code of Criminal Procedure. We overrule this first

part of Fernandez� third issue, but we must next address whether the State�s notice of intent to

30

introduce the evidence was unreasonable and was harmful error.

Part 2: Notice Requirement for Admissibility of Extraneous Offenses

�Reasonable Notice� and Harm Analysis for Insufficient Notice of Extraneous-offense Evidence

The notice provision of Rule 404(b) provides, in relevant part, that extraneous-offense

evidence may be admissible for limited, non-character conformity purposes provided that, upon

timely request by the accused, the prosecution gives the accused reasonable notice in advance of

trial of its intent to use such evidence during its case-in-chief. TEX. R. EVID. 404(b); see also

Hernandez v. State, 176 S.W.3d 821, 822 (Tex. Crim. App. 2005). The purpose of the notice

requirement is to avoid unfair surprise to the defendant and to enable him to prepare to answer the

extraneous misconduct evidence. See Hernandez, 176 S.W.3d at 825; Apolinar v. State, 106

S.W.3d 407, 414 (Tex. App. � Houston [1st Dist.] 2003), aff�d, 155 S.W.3d 184 (Tex. Crim. App.

2005); Roethel v. State, 80 S.W.3d 276, 281-82 (Tex. App. � Austin 2002, no pet.).

However, the admission of an extraneous offense into evidence when the State failed to

provide reasonable notice as required by statute is non-constitutional error. See McDonald v. State,

179 S.W.3d 571, 578 (Tex. Crim. App. 2005); Hernandez, 176 S.W.3d at 824. An appellate court

may reverse a judgment based on non-constitutional error only if that error affected the defendant�s

substantial rights. TEX. R. APP. P. 44.2(b).

To determine harm in light of the purpose of the extraneous-offense notice requirement,

we must analyze whether and how the notice deficiency affected the defendant�s ability to prepare

for the evidence. See Hernandez, 176 S.W.3d at 825; McDonald, 179 S.W.3d at 578; Apolinar,

106 S.W.3d at 414; Roethel, 80 S.W.3d at 282. Because there is no contention of prosecutorial

bad faith here, we examine the record to determine whether the deficient notice prevented the

31

defendant from preparing for trial. See Apolinar, 106 S.W.3d at 414; Roethel, 80 S.W.3d at 282.

In determining the impact on trial preparation, we look at whether the defendant was surprised by

the substance of the testimony and whether that surprise affected his ability to prepare crossexamination or to mitigate against evidence admitted against him. Apolinar, 106 S.W.3d at 414-

15; Roethel, 80 S.W.3d at 282. A defendant may demonstrate surprise by showing how his defense

strategy might have been different had the State explicitly notified him that it intended to offer the

extraneous-offense evidence at trial. See Hernandez, 176 S.W.3d at 826; Allen v. State, 202

S.W.3d 364, 369 (Tex. App. � Fort Worth 2006, pet. ref�d). Error in admitting evidence in

violation of a notice requirement does not have an �injurious� effect on the verdict if the defendant

was not surprised by the admission of the evidence. See Hernandez, 176 S.W.3d at 825; Roethel,

80 S.W.3d at 282.

If the trial court affords a defendant a continuance or recess to mitigate unreasonable notice

given by the State regarding an extraneous act, the unreasonable notice can be rendered harmless

where the defendant fails to request any additional time to address the newly-revealed extraneous

act or to make an objection based on having a potentially different defensive theory foreclosed by

an already-undertaken trial strategy. See, e.g., Francis v. State, 445 S.W.3d 307, 317 (Tex. App.

� Houston [1st Dist.] 2013), aff�d, 428 S.W.3d 850 (Tex. Crim. App. 2014); Webb v. State, 36

S.W.3d 164, 183 (Tex. App. � Houston [14th Dist.] 2000, pet. ref�d); Zubia v. State, No. 08-09-

00309-CR, 2012 WL 225470, at *9 (Tex. App. � El Paso Jan. 25, 2012, pet. ref�d) (not designated

for publication) (cases holding that the defendant was not harmed by insufficient notice where the

defendant did not request a continuance or additional time to prepare for the newly-revealed

evidence and where the record did not reflect that the defendant had a different defensive theory

32

to present had he known of the existence of the evidence at an earlier time); c.f. In Matter of E.O.E.,

508 S.W.3d 613, 624-25 (Tex. App. � El Paso 2016, no pet.) (overruling defendant�s claim that

the State�s mid-trial disclosure of Brady evidence favorable to him undermined confidence in the

verdict where he did not request a continuance when given the opportunity to do so).

Application

Even assuming that the State�s notice of intent to introduce the extraneous-offense

evidence was unreasonable, we find that its admission was harmless. Once the State informed

Fernandez of its intent to introduce extraneous-offense evidence that it had newly gained

knowledge from A.F., Fernandez objected because the timing of the State�s disclosure was

unbelievably disadvantageous, caught him by utter surprise, and would not give him adequate

opportunity to prepare a defense against the evidence. The trial court then brought A.F. into the

courtroom so that both sides would have an opportunity to explore the content of her potential

testimony outside the presence of the jury. After the State elicited testimony from A.F. about

multiple extraneous acts, Fernandez took his opportunity to cross-examine her. As it was a Friday,

the court then afforded Fernandez an early recess until Monday morning with the consent of the

State. When trial resumed on Monday and A.F. took the stand to testify, Fernandez neither

requested additional time to prepare a defense to the extraneous offenses nor made an objection

that his defensive theory was hamstrung at that point in time by the State�s late disclosure.

On review, we conclude that the record in this case demonstrates sufficient mitigating

circumstances allowing us to say with confidence that, by the time A.F. testified, the State�s

unreasonable notice did not have an injurious effect on the verdict. Our conclusion finds support

in the fact that Fernandez made no objection after the trial had resumed from an early recess before

33

the weekend when such early recess was given to allow him time to digest the newly revealed

extraneous-offense information acquired by the State from its recent interview of A.F. See, e.g.,

Francis, 445 S.W.3d at 317; Webb, 36 S.W.3d at 183; Zubia, 2012 WL 225470, at *9; c.f. In

Matter of E.O.E., 508 S.W.3d at 624-25. Furthermore, the trial court�s decision to allow both

parties to examine A.F. outside the presence of the jury and before the recess militates against a

conclusion that Fernandez was unable to prepare for the extraneous-offense evidence. See Self v.

State, 860 S.W.2d 261, 264 (Tex. App. � Fort Worth 1993, pet. ref�d) (that the defendant was not

surprised by the extraneous-offense testimony where the trial court afforded defense counsel an

opportunity to cross-examine the extraneous-offense witness outside the presence of the jury).

Any surprise was further mitigated by the State�s pre-trial notices that gave Fernandez general

notice that the State might introduce various unreported bad acts committed by him to show his

�[c]ontinuous physical, verbal and emotional abuse; [against] victim [Flores][.]� See Apolinar,

106 S.W.3d at 414-15; Roethel, 80 S.W.3d at 282 (in determining harm, a reviewing Court must

look to whether the defendant was surprised by the substance of the testimony).

Based on all the circumstances present here, we hold that the State�s deficient notice did

not affect Fernandez� substantial rights and did not amount to harmful error requiring reversal of

his conviction. See TEX. R. APP. P. 44.2(b); McDonald, 179 S.W.3d at 578; Hernandez, 176

S.W.3d at 824. Therefore, we overrule the second part of his third issue presented for review.

Issue 4: Whether the Trial Court Erred in Finding that Juror Garcia was Disabled

In his fourth issue presented for review, Fernandez argues in another two-part complaint

that the trial court abused its discretion in finding that Juror Garcia was disabled under article 36.29

of the Code of Criminal Procedure because, as Fernandez asserts, he was not given the opportunity

34

to question Juror Garcia or other relevant witnesses before the trial court made its ruling and

because no testimony from Juror Garcia or the first responders who tended to him was put on the

record. The State first responds that Fernandez waived this issue by failing to request a hearing

regarding Juror Garcia�s disability. Even if Fernandez did not waive his issue for appellate review,

the State additionally argues that the trial court�s recitation of the factual underpinnings of its ruling

supply the necessary record support for the ruling. We hold that Fernandez waived the first part

of his complaint about not having been afforded an opportunity to question witnesses on the

disability issue, and even after considering whether the trial court�s ultimate disability

determination was error, we hold that the trial court�s ruling is supported by the record.

Standard of Review

The trial court�s disability determination is reviewed for an abuse of discretion. Scales v.

State, 380 S.W.3d 780, 784 (Tex. Crim. App. 2012). In making its determination, the trial court

is the sole fact finder and judge of the credibility of the evidence. See id.

Article 36.29

Article 36.29 provides that not less than twelve jurors can render and return a verdict in a

felony case. TEX. CODE CRIM. PROC. ANN. art. 36.29(a). However, an express exception to this

provision gives the remainder of the jury the power to render a verdict where, after the trial of any

felony case begins and before the charge of the court is read to the jury, the trial court determines

that a juror has become disabled from sitting, and in such case, when a verdict is rendered by less

than the whole number, it shall be signed by every member of the jury concurring in it. Id. The

Court of Criminal Appeals has interpreted article 36.29 to require that a disabled juror suffer from

a physical illness, mental condition, or emotional state that would hinder or inhibit the juror from

35

performing his duties as a juror or that the juror was suffering from a condition that inhibited him

from fully and fairly performing the functions of a juror. Scales, 380 S.W.3d at 783.

Although the record must show the basis of the trial court�s determination on disability,

there is no requirement that the trial court have the potentially disabled juror testify on the record

regarding their disability. See Scales, 380 S.W.3d at 784 (recognizing that testimony from the

dismissed juror was not required and that the trial court�s decision was not based on a silent record

where the record reflected exchanges between the trial court and a witness to the juror�s potential

disability); Engledow v. State, Nos. 03-04-00765-CR, 03-04-00768-CR, 2006 WL 357890, at *2

(Tex. App. � Austin Feb. 16, 2006, no pet.) (mem. op., not designated for publication) (�Although

there must be some showing of disability, the legal standard by which a trial court determines that

a juror has become disabled does not require that the trial court obtain a particular type of proof of

the disability.�). The burden is on the complaining party to develop a sufficient record in the trial

court to show the nature and source of any error on appeal regarding a trial court�s ruling on juror

disability. Rivera v. State, No. 08-05-00339-CR, 2007 WL 766129, at *3 (Tex. App. � El Paso

Mar. 15, 2007, no pet.) (not designated for publication) (citing Ortiz v. State, 144 S.W.3d 225, 230

(Tex. App. � Houston [14th Dist.] 2004, pet. ref�d)).

Part 1: Lack of a Hearing Before Finding of Juror Disability

In this case, Fernandez objected to the trial court�s finding that Juror Garcia was disabled

on the basis that the finding may have been �premature� and did not comply with article 36.29 of

the Code of Criminal Procedure. Although the trial court indicated that Juror Garcia was still in

the courthouse waiting for his driver to arrive, Fernandez did not ask for a hearing to elicit live

testimony from any witnesses, and he did not object on that basis, even when given the opportunity

36

to do so after he was interrupted by the court.

However, to preserve error for appellate review, the Texas Rules of Appellate Procedure

require that the record show the objection �stated the grounds for the ruling that the complaining

party sought from the trial court with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context[.]� TEX. R. APP. P.

33.1(a)(1)(A); see also Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). The point of

error on appeal must comport with the objection made at trial. Clark, 365 S.W.3d at 339. And

although Fernandez made a clear objection regarding the requisites of article 36.29, he never made

the complaint he now makes on appeal regarding the lack of a hearing for live witness testimony

on the issue of Juror Garcia�s disability. We hold that this part of his fourth issue is waived because

his objection at trial does not comport with his complaint on appeal, and thus we overrule it. See

Clark, 365 S.W.3d at 339; cf. Rivera, 2007 WL 766129, at *2 (holding that defendant�s newlyraised appellate complaint concerning juror disability was waived where it did not comport with

the basis of his argument raised in the trial court).

Part 2: Finding of Juror Disability under Article 36.29

Juror Garcia first alerted the trial court to his physical illness when he interrupted opening

statements and expressed that he was �feeling a little sick.� To no avail, the trial court afforded

Juror Garcia multiple recesses in order to see if his condition would improve. Before excusing

Juror Garcia for being disabled, the trial court informed both parties on the record of the following

developments regarding Juror Garcia�s condition: (1) Juror Garcia said he had gotten lightheaded

and felt as though he was going to faint; (2) emergency medical services was called upon to check

his vitals; (3) although he did not want to leave, he felt �shaky, nervousness and wanting to faint�;

37

(4) he did not feel better even after having something to eat and having his vitals checked; and (5)

he was in such an ill state that he did not feel he could drive himself from the courthouse. Based

on this record support, we hold that the trial court acted within its discretion to determine that Juror

Garcia was disabled due to a physical illness that would inhibit him from fully and fairly

performing the functions of a juror. See Scales, 380 S.W.3d at 783-84.

In his attempt to show an abuse of discretion here, Fernandez points to the lack of record

support that is based on actual testimony from Juror Garcia himself or from the first responders

who tended to him and his condition. However, there is no requirement that the disabled juror

testify on the record. See Scales, 380 S.W.3d at 784; Engledow, 2006 WL 357890, at *2. Neither

is there any requirement that the trial court�s recitations on the record be corroborated by an

independent source of evidence. See Dacus v. State, No. 08-08-00026-CR, 2010 WL 546691, at

*3 (Tex. App. � El Paso Feb. 17, 2010, pet. ref�d) (not designated for publication) (rejecting

defendant�s contention that there must be independent corroboration from a doctor showing the

juror�s medical disability and instead recognizing the absence of any such additional requirements

before the trial court may discharge a juror for a disability). The burden remained on Fernandez

to develop a sufficient record to demonstrate error on appeal regarding the trial court�s ruling on

juror disability. Rivera, 2007 WL 766129, at *3. He has failed to do so here, and we must reject

his contentions and overrule this second part of his fourth issue on appeal, as well. See Rivera,

2007 WL 766129, at *3 (rejecting the defendant�s contention that the trial court �failed to create a

record that on appeal could have allowed the appellate Court to review a finding regarding juror

disability� because the burden was on the defendant to develop a sufficient record to show the

nature and source of his complained-of error).

For all the reasons stated, we conclude that the trial court�s judgment is affirmed.