Opinion filed June 8, 2017




                                      In The


        Eleventh Court of Appeals
                                  __________

      Nos. 11-15-00078-CR, 11-15-00079-CR, & 11-15-00080-CR
                            __________

                     JOE FRANK CUELLAR, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 32nd District Court
                              Nolan County, Texas
                  Trial Court Cause Nos. 11381, 11383, & 11384


                      MEMORANDUM OPINION
      In four separate indictments, the grand jury indicted Joe Frank Cuellar for the
sexual assault of C.G., D.G., C.G., and L.G. The State abandoned the indictment
that involved L.G. The three remaining cases were tried together. See TEX. PENAL
CODE ANN. § 22.021(a)(2)(B) (West Supp. 2016). The jury found Appellant guilty
of the offenses as charged in the remaining three indictments and assessed his
punishment at confinement for life in each case. The trial court sentenced him
accordingly. Appellant presents three identical issues for each case on appeal. We
affirm.
      In 2006, C.G., D.G., C.G., L.G., and their brother, M.G., were removed from
their parents’ home by CPS and placed with Rosa, the children’s biological aunt. In
2008, Rosa and her then husband adopted the children. The children lived for a time
with their adoptive father in Fort Hood, Texas. When the adoptive father was
accused of sexually assaulting the children, they moved back in with Rosa; Rosa was
living with Appellant at that time.
      Appellant’s sister became suspicious that Appellant was sexually abusing the
children, and she reported her suspicions to the police. The police began an
investigation, and during the investigation, the four girls revealed that they had all
been sexually assaulted by Appellant.
          In Appellant’s first issue, he argues that the trial court erred when it refused
to grant Appellant a continuance.           Appellant specifically argues that under
Article 39.14(b), the State had to disclose its expert witnesses within twenty days of
trial. TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (West Supp. 2016).
      The State voluntarily disclosed its expert witnesses on January 14, 2015, when
it filed a document in which it listed its potential experts; Stephanie Quintanar, a
licensed therapist and counselor, was on the State’s expert witness list.             On
January 23, 2015, four days before trial, Appellant requested that the trial court order
the State to disclose any expert witnesses whom the State intended to call at trial.
The trial court did not rule on Appellant’s disclosure request, nor did it order the
State to disclose its potential expert witnesses.
      Quintanar testified at trial for the State. At the conclusion of Quintanar’s
testimony, in a bench conference outside the presence of the jury, defense counsel
renewed his objection to Quintanar’s testimony because of the State’s late
designation of expert witnesses. Defense counsel conceded that Quintanar was on
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the list filed by the State but explained that he did not believe she was going to be
called because she was number five on the list. The prosecutor explained that
Quintanar’s name had been in the State’s file since the beginning and that the State
had always intended to call her to testify. The trial court overruled Appellant’s
objection.
       To preserve error under the version of Article 39.14(b) that is applicable here,1
Appellant must have obtained an order from the trial court in which the court
required the State to disclose its expert witnesses within twenty days of trial.
Harris v. State, 287 S.W.3d 785, 793 (Tex. App.—Houston [1st Dist.] 2009, no pet.),
abrogated on other grounds by Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App.
2009); see Tamez v. State, 205 S.W.3d 32 (Tex. App.—Tyler 2006, no pet.).
Because Appellant failed to obtain an order on his request for disclosure, he has not
preserved error for our review on this issue. Appellant’s first issue is overruled.
       In his second issue, Appellant contends that the trial court erred when it found
that a witness whom Appellant wanted to testify was unavailable. At the end of the
bench conference mentioned above, defense counsel informed the trial court that he
would like L.G. presented to the trial court to determine her availability to testify.
Defense counsel explained that he had “served a subpoena” for L.G. on the district
attorney’s office but that he had decided not to move forward with securing her
presence. However, because of testimony elicited at trial regarding L.G., defense
counsel changed his mind about her presence at trial.
       To determine L.G.’s “availability,” the trial court wanted to evaluate whether
L.G. was physically available and whether testifying would further traumatize her.


       1
         We note that Article 39.14(b) was amended in 2015 and no longer requires a court order. See Act
of May 22, 2015, 84th Leg., R.S., ch. 459, 2015 Tex. Gen. Laws 1774 (effective September 1, 2015).
However, because Appellant’s offenses were committed before September 1, 2015, the prior version of
Article 39.14(b) applies. See id. ch. 459, § 2; Benedict v. State, No. 05-15-00958-CR, 2016 WL 3742127,
at *4–5 (Tex. App.—Dallas July 7, 2016, pet. ref’d) (mem. op.).

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Quintanar was the most recent expert to have interviewed L.G. Quintanar explained
that L.G. had tried to commit suicide five or six days after their last counseling
session. L.G. had spent time in a psychiatric unit and then resided in a therapeutic
home designed to help children with extreme behavioral problems and emotional
instability. Quintanar said that L.G. suffered from post-traumatic stress disorder and
that, if she were to testify, it would potentially result in making the PTSD worse.
Quintanar stated that L.G. experienced “depression, anxiety, acting out, getting in
trouble at school . . . sexually acting out with boys” and that Quintanar feared for
L.G.’s safety from herself.
      Appellant argues that his constitutional right to compulsory process to bring
witnesses to court was violated. The right to compulsory process is “the right to
present a defense, the right to present the defendant’s version of the facts as well as
the prosecution’s to the jury so it may decide where the truth lies.” Coleman v. State,
966 S.W.2d 525, 527 (Tex. Crim. App. 1998) (quoting Washington v. Texas, 388
U.S. 14, 19 (1967)). It does not guarantee, however, the right to secure evidence
from any and all witnesses; rather, compulsory process is guaranteed only for
obtaining evidence that would be both material and favorable to the defense. See id.
at 527–28. To exercise his right to compulsory process, Appellant must have made
a plausible showing to the trial court, by sworn evidence or agreed facts, that the
witness’s testimony would be both material and favorable to the defense. Id. at 528.
The burden of proving materiality and favorableness is on the defendant. See id.
We review a complaint that the trial court violated a defendant’s right to compulsory
process under an abuse of discretion standard. Emenhiser v. State, 196 S.W.3d 915,
921 (Tex. App.—Fort Worth 2006, pet. ref’d).
      Appellant has not met his burden.         “A defendant who has not had an
opportunity to interview a witness may make the necessary showing by establishing
the matters to which the witness might testify and the relevance and importance of
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those matters to the success of the defense.” Coleman, 966 S.W.2d at 528. At trial,
Appellant argued that, because testimony had been brought up in regard to L.G., his
“Constitutional rights under Crawford [had] been invoked.” However, Appellant
did not present any evidence to the trial court about what L.G. may have testified to
or how her testimony would be material or favorable to his case. On appeal,
Appellant contends that L.G.’s testimony would have supported his defense that
L.G., the oldest sibling, would persuade or physically force her younger sisters to
say what she wanted them to say. Appellant argues that L.G.’s testimony would
have shown that, because she wanted out of the house so badly, she “convinced her
siblings to use their prior experience of abuse to make a second set of factually
similar allegations against [Appellant].” While Appellant argues that L.G. was “the
person who would know most about the matter,” he has not shown what L.G. would
have actually testified to or how her testimony would have been material and
favorable to Appellant’s defense. Additionally, Appellant presented no evidence on
the matter. Thus, we hold that, because Appellant has not met his burden to show
how L.G.’s testimony would have been material or favorable to the defense, his right
to compulsory process was not violated.
      Appellant further argues that “availability” only applies in a hearsay context
and that, because “[n]o one tried to offer former testimony or other hearsay-type
evidence” from an unavailable witness, a ruling that a witness is unavailable under
Rule 804 is meaningless. See TEX. R. EVID. 804. Further, Appellant contends that,
although a witness can be precluded from testifying if she is found to be incompetent,
the State failed to show that L.G. was incompetent. However, we will uphold a trial
court’s ruling if it is reasonably supported by the record and is correct under
any theory of law. Hayden v. State, 296 S.W.3d 549, 553 (Tex. Crim. App. 2009).
Even if the trial court improperly found L.G. to be unavailable to testify, we have
held that Appellant did not show that L.G.’s testimony would be material and
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favorable to his defense; therefore, we cannot say that the trial court abused its
discretion. Appellant’s second issue is overruled.
      In Appellant’s third issue, he asserts that the trial court erred when it allowed
the State to “delve into and highlight” Appellant’s religious beliefs in front of the
jury. We take Appellant’s argument to be a challenge to admitted evidence under
Rule 403 of the Texas Rules of Evidence. We review a trial court’s decision to admit
or exclude evidence under an abuse of discretion standard. Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1991). We will reverse a trial court’s ruling only
if it is outside the “zone of reasonable disagreement.” Id.
      Appellant complains of pictures that were admitted into evidence that depict
Appellant’s pickup with a sign on the side that said “Emmanuel Construction” and
“J.C. – owner”; of pictures of Appellant’s house that depicted the sign over the door
that read “Christ”; and of witness testimony elicited by the State about Appellant’s
belief that he was Christ and the effect those beliefs had on the children. Appellant
argues that the evidence was irrelevant and “likely inflamed the passions of the jury
for reasons unrelated to the merits of the case or the evidence presented.” The State
argues that the evidence was relevant to show how Appellant used his power as
“Jesus Christ” to influence the children to submit to the abuse by him. Appellant
asserts that, even if the trial court believed the evidence to be relevant, the State did
not connect the evidence about his beliefs to the alleged control.
        However, Appellant has waived any error that might exist. Appellant filed
a pretrial motion in limine in regard to Appellant’s religious beliefs. The trial court
heard the motion prior to voir dire and ruled that the State could discuss Appellant’s
religious beliefs without first approaching the bench if the discussion was in the
context of how Appellant’s religious beliefs were used to coerce, intimidate, or
control the victims. At trial, Appellant objected to the admission of the complained-
of pictures but failed to make a specific, timely objection to the State’s questions and
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witness testimony to which Appellant directs us in his brief. See Wilson v. State, 71
S.W.3d 346, 349 (Tex. Crim. App. 2002) (To preserve error, the complaining party
must make a specific objection at the earliest possible opportunity.). The admitted
pictures and the testimony of which Appellant complains both involve Appellant’s
religious belief that he is Jesus Christ.
      It is well established that questions that involve the admission of evidence are
rendered moot if the same evidence is elsewhere introduced without objection; any
error in admitting evidence over a proper objection is harmless if the same evidence
is subsequently admitted without objection. Chamberlain v. State, 998 S.W.2d 230,
235 (Tex. Crim. App. 1999). Further, a motion in limine does not preserve error; an
objection must be made at the time the evidence is offered at trial. Martinez v. State,
98 S.W.3d 189, 193 (Tex. Crim. App. 2003). Accordingly, Appellant has not
preserved error for our review on this issue. Appellant’s third issue is overruled.
      We affirm the judgments of the trial court.


                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE


June 8, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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