Jesse Manuel Gonzales v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00374-CR

JESSE MANUEL GONZALES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 235th District Court
Cooke County, Texas
Trial Court No. CR23-00022, Honorable Janelle M. Haverkamp, Presiding

December 8, 2025
MEMORANDUM OPINION 1
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Appellant, Jesse Manuel Gonzales, appeals the trial court’s judgment

memorializing his convictions on two counts of sexual assault of a child. He presents two

issues for review. We overrule each and affirm.

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Because this matter was transferred from the Second Court of Appeals, we apply its precedent
when it conflicts with that of the Seventh Court of Appeals. See TEX. R. APP. P. 41.3.
Background

When complainant HJ was approximately fourteen years old in the fall of 2016,

appellant became friends with her older siblings and began visiting their home. So too

would he occasionally stay the night, playing video games with HJ’s older brother.

Some months later, HJ recalled appellant coming into her room one night. He

awakened her by forcing his penis into her mouth while atop her in some manner. She

testified that appellant frequently would do this when staying at the abode into the night.

That resulted in the victim attempting to avoid him by either staying in her tree house or

taking late night walks.

Eventually, appellant visited the home less frequently as the older siblings moved

away. Some years later, in November 2022, HJ encountered appellant at her place of

employment and had a breakdown. That prompted her to report appellant’s conduct to

law enforcement.

During trial, the trial court excluded evidence the appellant sought to proffer. It

consisted of an earlier sexual interaction of HJ with another individual. He too was over

17 at the time while HJ was a minor. Though it became the subject of criminal

investigation at the behest of her mother, HJ asked that the prosecution be dropped,

apparently due to its consensual nature. It was dropped. Yet, appellant sought to admit

evidence of the liaison as an explanation for the mental trauma suffered by HJ as a result

of appellant’s assaults.

During another instance, appellant sought to admit photographs of himself taken

about the same time as the alleged assaults. The photos were taken with and by a former

girlfriend. The trial court allowed its admission but also inquired about the age of the

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female when taken. Appellant objected to the inquiry, characterizing it as conveying the

trial court’s opinion about whether appellant had engaged in another assault upon a

minor.

Issue One: Exclusion of Evidence of Prior Assault

Regarding evidence of the earlier sexual encounter, appellant maintained that it

was admissible under Rule 412 of the Texas Rules of Evidence based on two exceptions

within the rule. Those exceptions permitted the admission of such evidence 1) to rebut

the State’s scientific and medical evidence concerning HJ’s mental health concerns

following the alleged assaults by appellant in the instant case, and 2) as constitutionally

required.

We review the trial court’s exclusion of evidence for abused discretion. See Page

v. State, 213 S.W.3d 332, 337 (Tex. Crim. App. 2006). So long as the ruling falls within

the zone of reasonable disagreement, it must be upheld under that standard. See id.

In a sexual assault case, evidence of a victim’s past sexual behavior is typically

inadmissible. See TEX. R. EVID. 412(a). Yet, there are exceptions to the rule. It may be

admitted when necessary to explain or rebut scientific or medical evidence offered by the

State or is constitutionally required. See TEX. R. EVID. 412(b)(2)(A), (E). Even then

though, the value of the questioned evidence must outweigh the danger of unfair

prejudice. See TEX. R. EVID. 412(b)(3); Hood v. State, 944 S.W.2d 743, 746 (Tex. App.—

Amarillo 1997, no pet.). We closely scrutinize the probative value of evidence of a victim’s

sexual history. See Escobedo v. State, Nos. 07-18-00096-CR, 07-18-00097-CR, 2019

Tex. App. LEXIS 1763, at *3–4 (Tex. App.—Amarillo Mar. 6, 2019, no pet.) (mem. op.,

not designated for publication); Cofer v. State, No. 07-04-0383-CR, 2005 Tex. App. LEXIS

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10586, at *5 (Tex. App.—Amarillo Dec. 21, 2005, no pet.) (mem. op., not designated for

publication).

Returning to the evidence at issue, the trial court understood the State’s position

to be that the earlier sexual encounter was “consensual” and would not be relevant to

rebut the evidence that HJ had suffered mental health concerns as a consequence of

appellant’s assaults. In other words, the prior sexual experience could not have served

as a basis for her mental health declining given their “consensual” nature (though, to be

clear, the law deemed HJ too young to lawfully consent). The trial court also concluded

that the evidence of the prior sexual experience was not sufficiently relevant to address

what appellant deemed a prior inconsistent statement concerning HJ’s different reasons

for delaying her outcry against appellant.

Rule 412 places “an extremely high hurdle” to clear before evidence of past sexual

behavior may be admitted. See Lang v. State, No. 02-22-00298-CR, 2024 Tex. App.

LEXIS 515, at *18 (Tex. App.—Fort Worth Jan. 25, 2024, pet. ref’d) (mem. op., not

designated for publication) (citing Todd v. State, 242 S.W.3d 126, 129 (Tex. App.—

Texarkana 2007, pet. ref’d)). Indeed, to be admissible, the challenged evidence of sexual

history “must directly address—and must clearly contradict—the State's evidence.” Todd,

242 S.W.3d at 129.

One may reasonably label appellant’s effort at bar as comparing apples to

oranges. Here, the orange is the mental consequence arising from a non-consensual

rape. The apple, however, is mental consequence, if any, arising for one’s engaging in

consensual sex. Appellant sought to use mental consequence from a consensual sex

act as explanation for the mental consequence from being raped. Yet, he neglected to

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illustrate that one engaging in a consensual sex act, even if an underaged minor, results

in severe mental consequence akin to that caused by rape. Rather, he simply assumed

so. But, until he illustrated that the consequences between a consensual and non-

consensual act are similar, the relevance of a prior consensual sex act is nominal. And,

in that case, excluding the evidence because its potential prejudice outweighs its

relevance would fall within the zone of reasonable disagreement.

Appellant advances another rationale in support of admissibility of the evidence.

Initially, HJ explained that the delay in reporting appellant’s assaults was due to her

brother’s reaction to her revelation about the earlier consensual sex act. Revealing the

earlier act injured HJ’s relationship with her brother (who supposedly disbelieved its

occurrence). So, HJ delayed in revealing appellant’s assaults because she did not want

to again injure her relationship with her brother. At trial, though, she testified she was

scared of appellant and, for that reason, delayed making an outcry against him. So, the

two explanations for her delay were inconsistent, according to appellant. And, the

Confrontation Clause of the United States Constitution allegedly allowed appellant to

broach that inconsistency at trial to discredit HJ’s credibility.

The Sixth Amendment to the United States Constitution provides that a criminal

defendant has the right to be confronted with the witnesses against him. U.S. CONST.

amend. VI. This right includes the right to cross-examine a testifying State’s witness with

relevant, impeaching evidence that might reflect bias, interest, prejudice, inconsistent

statements, traits of character affecting credibility, or evidence that might go to any

impairment or disability affecting the witness’ credibility. See Lempar v. State, 191

S.W.3d 230, 236–37 (Tex. App.—San Antonio 2005, pet. ref’d) (citing Virts v. State, 739

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S.W.2d 25, 28-29 (Tex. Crim. App. 1987) (en banc)). However, even were we to assume

the exception under Rule 412(b)(2)(E) applies here, such evidence is still subject to Rule

412(b)(3)’s balancing test, the results of which would support the trial court’s exclusion of

the evidence.

Revisiting that balancing test to examine the confrontation and impeachment

aspects of his position on appeal, we bear in mind that the challenged evidence of the

earlier sexual experience with another individual must directly address—and must clearly

contradict—the State’s evidence. See Todd, 242 S.W.3d at 129. Evidence that HJ had

a past, apparently consensual, sexual experience pre-dating the allegations against

appellant does little to impeach HJ’s testimony that she delayed reporting the assaults

out of fear of appellant. That her brother reacted negatively toward the allegations

associated with HJ’s previous sexual experience may have served as another reason

why she delayed reporting the assaults. Moreover, the viability of one reason for delay

does not necessarily pretermit or undermine the viability of the other. Both things may be

true. In short, the impeachment value of the evidence concerning familial reaction to prior

allegations of sexual assault is minimal and, thus, outweighed by the potential prejudice

of such evidence. At the very least, it is a matter within the zone of reasonable

disagreement.

Lastly, authority provides that a trial court does not err in excluding evidence of a

complainant’s sexual activities with third parties unless those activities are material to an

issue, and the defendant raises consent as a defense. See Evans v. State, No. 11-13-

00296-CR, 2015 Tex. App. LEXIS 3112, at *19 (Tex. App.—Eastland Mar. 31, 2015, pet.

ref’d) (mem. op., not designated for publication); Campos v. State, No. 13-00-638-CR,

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2002 Tex. App. LEXIS 2452, at *7–8 (Tex. App.—Corpus Christi Apr. 4, 2002, no pet.)

(mem. op., not designated for publication); Roberts v. State, No. 03-96-00313-CR, 1997

Tex. App. LEXIS 3174, at *6–7 (Tex. App.—Austin June 19, 1997, no pet.) (mem. op.).

Appellant did not raise the issue of consent. This too insulated the trial court’s decision

from allegations of abused discretion.

We overrule appellant’s first issue.

Issue Two: Comment on the Weight of the Evidence

As noted, appellant sought to introduce evidence that contradicted HJ’s description

of physical appearance at the time of the alleged assaults. To that end, he elicited

testimony from a former girlfriend and also introduced photographs through the former

girlfriend with the intent to undermine HJ’s description of him. As these photographs were

being introduced the following exchange took place among defense counsel, witness,

and the trial court:

Counsel: Your Honor, at this time I would offer Defendant’s Exhibit 6 and 7.

State: No objection.

Counsel: May I publish, Your Honor?

Court: Yes.

Counsel: (Displays)

Court: How old were you when these pictures were taken?

Witness: I was of legal age. I was like 19 when I worked at Starbucks.

Defense counsel sought permission to approach the bench and, once there, moved for a

mistrial on the basis that the trial court’s question directed at the witness was a comment

on the weight of the evidence and was a violation of Article 38.05 of the Texas Code of

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Criminal Procedure. A hearing outside the presence of the jury ensued. Ultimately, the

trial court denied the motion for mistrial and noted that it would instruct the jury in its

charge that the jurors are not to take any remark or ruling of the trial court as indicative of

its opinion on the case. In its charge, the trial court did instruct jurors as follows:

During your deliberations you are instructed that you should not consider
the remarks, rulings or actions of the presiding judge during this trial as any
indication of the court’s opinion as to the existence or nonexistence of any
fact or as any indication of the court’s opinion as to the guilt or innocence of
the defendant.

The Texas Code of Criminal Procedure provides the following safeguard:

In ruling upon the admissibility of evidence, the judge shall not discuss or
comment upon the weight of the same or its bearing in the case, but shall
simply decide whether or not it is admissible; nor shall he, at any stage of
the proceeding previous to the return of the verdict, make any remark
calculated to convey to the jury his opinion of the case.

TEX. CODE CRIM. PROC. art. 38.05. “To constitute reversible error [under] Article 38.05 . . .

the comment must be such that it is reasonably calculated to benefit the State or prejudice

the defendant’s rights.” Proenza v. State, 541 S.W.3d 786, 791 (Tex. Crim. App. 2017).

That is, a trial court improperly comments on the weight of the evidence when it implies

approval of the State’s argument, indicates disbelief in the defense’s position, or

diminishes the credibility of the defense’s approach to the case. Arevalo v. State, 675

S.W.3d 833, 857 (Tex. App.—Eastland 2023, no pet.). A mistrial is appropriate for only

“highly prejudicial and incurable errors,” and a trial court’s denial of a motion for mistrial

is reviewed under an abuse-of-discretion standard. Simpson v. State, 119 S.W.3d 262,

272 (Tex. Crim. App. 2003).

We begin by examining the context in which the trial court asked this question of

the testifying witness. Again, appellant had earlier offered into evidence an explicit

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photograph showing his pubic region during intercourse with his fiancée. He apparently

did so to contradict HJ’s characterization of appellant as having a very hairy groin area.

From the record, one can infer the sequence of comments and events unfolding at trial.

They indicate that the trial court had not inspected the photographs prior to admitting

them, there having been no objection advanced at their proffer and only asking to see

them after the controversy arose. But likely reminded of the previously admitted explicit

photograph of appellant’s genital region, the trial court inquired into the age of the former

girlfriend. It later explained that it wanted to assure that the photos were not “illegal.” In

other words, it belatedly wanted to assure that they did not depict a minor in a sexual

situation. More importantly, the former girlfriend responded to the court’s question. That

response consisted of her revealing she was nineteen at the time, or otherwise of age to

consent. That ended the inquiry.

One must remember that the case involved non-consensual sex with a minor.

Under that circumstance, we can see that a trial court would wish to proceed cautiously

to avoid potentially admitting photos of appellant engaging in another sex act with a young

woman. Indeed, preventing the witness from inadvertently interjecting into one

prosecution the risk for another against appellant would be a course of action reasonable

jurists could pursue. The same is no less true about intending to insulate from public

display pictures of a minor engaging in a sexual act. It may be that more discreet modes

of vitiating those risks could have been pursued. Yet, the witness’s answer ended them.

It dispelled any notion that appellant happened to be engaging in sex with a minor when

the photographs were taken. So too did the one question and answer end the situation;

that is, the matter was dropped.

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Thereafter, the trial court instructed the jury to not consider its remarks, rulings,

and actions “as any indication of the court’s opinion as to the existence or nonexistence

of any fact or as any indication of the court’s opinion as to the guilt or innocence of the

defendant.” This is of import since “[a]n instruction to disregard is generally sufficient to

cure error from an improper judicial comment.” Proenza v. State, 541 S.W.3d 786, 811-

12 (Tex. Crim. App. 2017). Assuming arguendo that the trial court’s question could be

read as a comment on the evidence, we view nothing in it (when coupled with the

witness’s answer) so extreme or so manifestly improper as to overcome the effect of an

ameliorative instruction like that provided at bar. And, we presume the jury followed court

instructions when, as here, no evidence suggests the jurors did not. See Kirk v. State,

199 S.W.3d 467, 479 (Tex. App.—Fort Worth 2006, pet. ref'd). Having reviewed the trial

court’s denial of mistrial for an abuse of discretion, we find none and overrule the issue.

The trial court’s judgment is affirmed.

Brian Quinn
Chief Justice

Do not publish.

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