Robert Carlos Ochoa v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-22-00285-CR

ROBERT CARLOS OCHOA,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 413th District Court
Johnson County, Texas
Trial Court No. DC-F202100754

MEMORANDUM OPINION

Appellant, Robert Carlos Ochoa, was found guilty of the offense of Assault Family

Violence with a Prior Conviction for assault family violence, a third-degree felony. See

TEX. PENAL CODE ANN. § 22.01(b)(2)(A). The jury also found that Ochoa had previously

been convicted of two felonies involving family violence and assessed his punishment at

ninety-nine years in the penitentiary. See id. § 12.42(d).
In two issues, appellant argues that: (1) the trial court erred by admitting evidence

of prior instances of family violence involving appellant and the complainant under

article 38.371 of the Texas Code of Criminal Procedure and Texas Rule of Evidence 404(b),

see TEX. CODE CRIM. PROC. ANN. art. 38.371; TEX. R. EVID. 404(b); and (2) the evidence is

insufficient to support his conviction for assault family violence with a prior conviction.

We affirm.

Admitted Evidence

In his first issue, Ochoa argues that the trial court abused its discretion by

admitting testimony regarding the details of the relationship between Ochoa and the

complainant under Texas Rule of Evidence 404(b). 1 See TEX. R. EVID. 404(b). We disagree.

STANDARD OF REVIEW

We review a trial court’s decision to admit evidence of prior crimes, wrongs, or

bad acts for an abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim.

App. 2009). Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Under that

1 We recognize that Ochoa mentions article 38.371 of the Texas Code of Criminal Procedure in his
brief. See TEX. CODE CRIM. PROC. ANN. art. 38.371. However, in this issue, Ochoa emphasizes that the
complained-of extraneous-offense evidence should have been excluded under Texas Rule of Evidence
404(b). See TEX. R. EVID. 404(b). Moreover, a review of the record shows that Ochoa objected to the
complained-of extraneous-offense evidence under Texas Rule of Evidence 404(b). See id. To the extent that
Ochoa argues in this issue that the evidence was not admissible under article 38.371 of the Texas Code of
Criminal Procedure, we note that this contention does not comport with this objection made at trial and,
thus, presents nothing for appellate review. See Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003)
(holding that an issue was not preserved for appellate review because appellant’s trial objection did not
comport with the issue he raised on appeal); see also Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—
Texarkana 2005, pet. ref’d) (“Where a trial objection does not comport with the issue raised on appeal, the
appellant has preserved nothing for review.”).

Ochoa v. State Page 2
standard, we affirm admissibility rulings when they are within the zone of reasonable

disagreement. See Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005); James v. State,

623 S.W.3d 533, 541 (Tex. App.—Fort Worth 2021, no pet.). A trial court’s ruling on the

admissibility of an extraneous offense is generally within this zone if the evidence shows

that: (1) an extraneous transaction is relevant to a material, non-propensity issue; and (2)

the probative value of the evidence is not substantially outweighed by the danger of

unfair prejudice, confusions of the issues, or misleading the jury. De La Paz, 279 S.W.3d

at 344. “Furthermore, if the trial court’s evidentiary ruling is correct on any theory of law

applicable to that ruling, it will not be disturbed even if the judge gave the wrong reason

for his right ruling.” Id.

APPLICABLE LAW

Texas Rule of Evidence 404(b) precludes the admission of evidence of a crime,

wrong, or act solely to prove a person’s character to show that he acted in conformity

with that character on a particular occasion, but the rule allows for such evidence to be

admitted for other purposes, “such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2).

Those listed purposes “are neither mutual exclusive not collectively exhaustive.” De La

Paz, 279 S.W.3d at 343. Therefore, although Rule 404(b) limits character evidence, it is

nevertheless a rule of inclusion. TEX. R. EVID. 404(b); see De La Paz, 279 S.W.3d at 343; see

Ochoa v. State Page 3
also Gaulding v. State, No. 02-21-00096-CR, 2022 Tex. App. LEXIS 9509, at *9 (Tex. App.—

Fort Worth Dec. 29, 2022, pet. ref’d) (mem. op., not designated for publication).

“Article 38.371 [of the Texas Code of Criminal Procedure], which applies to family-

violence prosecutions, provides an additional non-character conformity purpose for

admitting extraneous-offense evidence.” James, 623 S.W.3d at 545. Although article

38.371 explicitly prohibits the presentation of character evidence that is otherwise

inadmissible under the Texas Rules of Evidence or other laws, it expressly allows

“evidence of all relevant facts and circumstances that would assist the trier of fact in

determining whether the actor committed the offense . . . including testimony or evidence

regarding the nature of the relationship” between the accused and the complainant. Id.

at 545-46 (citing TEX. CODE CRIM. PROC. ANN. art. 38.371(b)-(c)). Article 38.371(b)

expressly provides for the admission of extraneous-offense evidence regarding the nature

of the relationship between an accused and a complainant. See James, 623 S.W.3d at 546;

see also Gaulding, 2022 Tex. App. LEXIS 9509, at **9-10.

DISCUSSION

Contrary to Ochoa’s assertion, the complained-of extraneous-offense evidence

was not introduced to show character conformity. At trial, the complainant, Ochoa’s

girlfriend, testified to verbal abuse and three instances of physical abuse perpetrated by

Ochoa based on Ochoa’s ongoing belief that she had been unfaithful with other people,

including Ochoa’s sixteen-year-old nephew. The State made it clear at trial that it was

Ochoa v. State Page 4
offering the extraneous-offense evidence to show the nature of the relationship between

Ochoa and the complainant, and it was on this basis that the trial court allowed the

evidence to be admitted. The nature of Ochoa and the complainant’s relationship was an

important factor in this assault-family-violence case, and in addition to the extraneous-

offense evidence, the State also presented expert testimony to explain the dynamics of a

relationship marked by violence. Because the complained-of extraneous-offense

evidence showed the nature of Ochoa and the complainant’s relationship, we conclude

that it was admissible for that purpose under article 38.371 of the Texas Code of Criminal

Procedure and Texas Rule of Evidence 404(b). See James, 623 S.W.3d at 546; see also TEX.

CODE CRIM. PROC. ANN. art. 38.371(b); TEX. R. EVID. 404(b). Accordingly, the trial court

did not abuse its discretion by admitting this evidence over Ochoa’s Rule 404(b) objection.

See James, 623 S.W.3d at 546; see also Gonzalez v. State, 541 S.W.3d 306, 312-13 (Tex. App.—

Houston [14th Dist.] 2017, no pet.).

Sufficiency of the Evidence

In his second issue, Ochoa argues that the trial court erred in accepting the jury’s

verdict because the evidence was insufficient to support a conviction for assault family

violence with a prior conviction.

STANDARD OF REVIEW

The Court of Criminal Appeals has expressed our standard of review of sufficiency

issues as follows:

Ochoa v. State Page 5
When addressing a challenge to the sufficiency of the evidence, we consider
whether, after viewing all of the evidence in the light most favorable to the
verdict, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 61 L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex.
Crim. App. 2017). This standard requires the appellate court to defer “to
the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Jackson, 443 U.S. at 319. We may not re-weigh
the evidence or substitute our judgment for that of the factfinder. Williams
v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting
a sufficiency review must not engage in a “divide and conquer” strategy
but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d
at 232. Although juries may not speculate about the meaning of facts or
evidence, juries are permitted to draw any reasonable inferences from the
facts so long as each inference is supported by the evidence presented at
trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App.
2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9,
16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any
conflicting inferences from the evidence in favor of the verdict, and we
defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
Crim. App. 2012). This is because the jurors are the exclusive judges of the
facts, the credibility of the witnesses, and the weight to be given to the
testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
Direct evidence and circumstantial evidence are equally probative, and
circumstantial evidence alone may be sufficient to uphold a conviction so
long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
(Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

We measure whether the evidence presented at trial was sufficient
to support a conviction by comparing it to “the elements of the offense as
defined by the hypothetically correct jury charge for the case.” Malik
v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury charge is one that “accurately sets out the law, is authorized by
the indictment, does not unnecessarily increase the State's burden of proof
or unnecessarily restrict the State's theories of liability, and adequately
describes the particular offense for which the defendant was tried.” Id.; see
also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The
“law as authorized by the indictment” includes the statutory elements of
Ochoa v. State Page 6
the offense and those elements as modified by the indictment. Daugherty,
387 S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

APPLICABLE LAW

Under the applicable law here, the State was required to prove that: (1) Ochoa

intentionally, knowingly, or recklessly caused bodily injury to Darra Williams, a dating

partner; and (2) before the commission of the present offense, Ochoa was previously

convicted of committing an assaultive offense against a dating partner under chapter 22

of the Texas Penal Code. See TEX. PENAL CODE ANN. § 22.01(a), (b)(2)(A). A “dating

relationship” means “a relationship between individuals who have or have had a

continuing relationship of a romantic or intimate nature.” TEX. FAM. CODE ANN. §

71.0021(b).

DISCUSSION

In her testimony, Williams described numerous instances where Ochoa assaulted

her between December 2020 and June 2021. When Williams and Ochoa began dating in

July 2020, the relationship was normal; however, by October 2020, Williams testified that

Ochoa began controlling her phone and monitoring her whereabouts. Williams

recounted that in December 2020, Ochoa forced her to have sexual intercourse and beat

her when he believed she had been cheating on him while she was gone working her job

at a nearby hotel. Since that time, Ochoa physically assaulted Williams almost every day.

Williams stated that in May 2021, Ochoa choked and hit Williams after accusing her of
Ochoa v. State Page 7
cheating on him while the two were staying with a friend of Ochoa’s. On another

occasion, Ochoa believed Williams was cheating on him with his friend while driving to

Azle, Texas. Ochoa slapped Williams and grabbed her by her hair when she tried to run

from Ochoa during that trip. Ochoa also dug his fingers into Williams’s side while in the

car, grabbed her throat, bit her face, and threw her into the car door window.

In June 2021, Ochoa believed that Williams was cheating on him with his 16-year-

old nephew and with a coworker at the hotel where Williams worked. Ochoa hit and

choked Williams in the camper they lived in outside of Ochoa’s mother’s house as a

result. Williams ran from Ochoa after the incident. Numerous photos showing redness,

bruising, and bite marks were admitted as evidence without objection. Dr. Samantha

Harris of Texas Health Cleburne and Texas Health Azle, testified that she treated

Williams for difficulty swallowing after she had reportedly been strangled by Ochoa. The

doctor observed several bruises on Williams’s body. 2

After Williams left Ochoa in June 2021, she reported the instances of domestic

violence to the police, and Ochoa began asking her to drop the case. Williams, believing

she was in love with Ochoa and that Ochoa could change, continued to talk to him and

signed an Affidavit of Non-Prosecution. She also wrote a letter stating that the incidences

2 In response to Dr. Harris’s testimony, Ochoa asserts that Williams’s medical record belie her
contention that she was assaulted. Even if true, this merely creates a conflict in the evidence for which the
jury was tasked to evaluate and resolve, and this Court must defer to the jury’s resolution of the purported
conflict. See Marshall v. State, 479 S.W.3d 840, 845 (Tex. Crim. App. 2016); Montgomery v. State, 369 S.W.3d
188, 192 (Tex. Crim. App. 2012); see also Green v. State, 607 S.W.3d 147, 152 (Tex. App.—Houston [14th Dist.]
2020, no pet.).

Ochoa v. State Page 8
of domestic violence described above did not occur. However, Williams later testified at

trial that she lied on the affidavit and wrote the letter at the request of Ochoa. Deanne

Derrick, the Program Director of the Johnson County Family Crisis Center, testified that

there is a “cycle of violence” with four stages. Derrick noted that when the relationship

starts, “everything is going great.” Then, tension builds until there is an explosive

incident. Thereafter, is the honeymoon stage where the perpetrator is remorseful. After

the honeymoon stage, Derrick opined that the cycle “will start all over again.” Derrick

also stated that it is “very common” for the victim of domestic violence to recant

statements about the abuse.

Viewing the evidence in the light most favorable to the jury's verdict, we conclude

that a rational jury could have determined that Ochoa and Williams were in a dating

relationship, Ochoa assaulted Williams, and Ochoa had previously been convicted of

assault family violence. 3 See TEX. FAM CODE ANN. § 71.0021(b); see also TEX. PENAL CODE

ANN. § 22.01(a)(1). And to the extent that the evidence conflicts, we note that jurors are

the exclusive judges of the facts, the credibility of the witnesses, and the weight to be

given to the testimony. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App.

2012); see also Green v. State, 607 S.W.3d 147, 152 (Tex. App.—Houston [14th Dist.] 2020,

no pet.). The jury may choose to believe or disbelieve all or part of a witness’s testimony,

3 The evidence included judgments of conviction associated with Ochoa’s prior convictions in 2011
and 2015, for assault family violence.

Ochoa v. State Page 9
and to the extent conflicts in the evidence exist, we presume the jury resolved said

conflicts in the evidence in favor of the prevailing party. See Marshall v. State, 479 S.W.3d

840, 845 (Tex. Crim. App. 2016) (“We defer to the jury’s finding when the record provides

a conflict in the evidence.”); see also Green, 607 S.W.3d at 152. Accordingly, we hold that

the evidence is sufficient to support Ochoa’s conviction for assault family violence with

a prior conviction. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A); see also Zuniga, 551 S.W.3d

at 732-33. We overrule Ochoa’s second issue.

Conclusion

Having overruled both of Ochoa’s issues on appeal, we affirm the judgment of the

trial court.

MATT JOHNSON
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed August 2, 2023
Do not publish
[CRPM]

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