Affirmed and Memorandum Opinion filed July 30, 2019.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00513-CR
                              NO. 14-18-00514-CR

                    RUBEN NOEL ORNELAS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                  On Appeal from the 212th District Court
                          Galveston County, Texas
              Trial Court Cause No. 16-CR-3171 & 16-CR-3172

                 MEMORANDUM OPINION

      Appellant Ruben Noel Ornelas pleaded guilty to two offenses and the trial
court assessed punishment. On appeal, Appellant asserts the trial court erred by
admitting evidence of an extraneous offense at his punishment hearing. For the
reasons below, we affirm.

                                 BACKGROUND

      Appellant pleaded guilty to online solicitation of a minor and indecency with
a child by sexual contact and proceeded under two separate cause numbers. The
trial court held a punishment hearing to assess punishment for both offenses.

      Complainant testified at the punishment hearing regarding the events
underlying Appellant’s convictions. When she was 15 years old and Appellant
was 33, Complainant met Appellant at an apartment complex where her father
worked. Appellant and Complainant began texting and their conversations turned
sexual in nature. Complainant said their first sexual encounter occurred at the
apartment complex office, during which Appellant forced Complainant to “jack
him off and stuff.” Complainant said Appellant also touched her breasts and
vaginal area through the outside of her clothing.

      The second incident occurred when Complainant rode with Appellant in his
vehicle to dispose of some tree branches. Complainant said Appellant stopped his
vehicle at a dumpster; got out of the driver’s seat; and walked around the vehicle to
open Complainant’s passenger-side door. Complainant said she lay down and
Appellant “started going in [her] shirt and he tried to unbutton [her] pants.”
Complainant said Appellant grabbed her arm and forced her to touch his penis.
Complainant said the incident ended when Appellant received a phone call from
his wife.

      Ten additional witnesses testified at Appellant’s punishment hearing:

      •      Melencio Villareal, a Texas City police officer. Officer Villareal
             investigated Appellant with respect to the underlying convictions.
             Officer Villareal previously had investigated Appellant regarding the
             unlawful disclosure of intimate materials and spoke to five women
             who had suggestive and nude photographs published online. Officer
             Villareal said Appellant was the “primary suspect” in the unlawful
             disclosure case.
      •      Ashley Hardage, a friend of Appellant who had known him since
             middle school. Hardage testified regarding suggestive and sexually-

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            explicit photographs of her posted online without her permission.
            Hardage said Appellant was the only connection between her and the
            other women pictured on the website.
      •     Katherine Romero, who had known Appellant since 5th grade and had
            an off-and-on romantic relationship with him. Katherine Romero
            testified regarding suggestive and sexually-explicit photographs of her
            that were published online without her permission. Katherine Romero
            said she had sent some of the photographs to Appellant and some he
            had taken himself.
      •     Vanessa Ramos, who previously had been romantically involved with
            Appellant. Ramos testified regarding suggestive and sexually-explicit
            photographs of her posted online without her permission.
      •     Kristin Ornelas, Appellant’s wife. Kristin Ornelas testified regarding
            suggestive and sexually-explicit photographs of her posted online
            without her permission. Kristin Ornelas also testified regarding
            sexually-explicit text messages between Appellant and Complainant
            that she found on Appellant’s phone.
      •     Lorita Schulze, an inmate at the Galveston county jail when Appellant
            was employed as a bailiff. Schulze testified that, when she was
            incarcerated, Appellant asked her to give him oral sex. Schulze said
            she complied with the request because she felt “intimidated.”
      •     Erica Romero, who testified about an incident that occurred
            approximately 18 years earlier, when she was 14 years old and
            Appellant was a senior in high school. Erica Romero said Appellant
            forced her to have sex with him when he drove her home from a party.
      •     Chris Ryan, Appellant’s friend. Ryan testified regarding text
            messages she received from Appellant showing a young teenage girl
            posing suggestively while wearing lingerie.
      •     Patricia Merkley, Appellant’s therapist. Merkley said Appellant had
            been sexually abused as a child and was making progress in therapy.
      •     Linda Ornelas, Appellant’s mother. Linda Ornelas said she suspected
            Appellant had been sexually abused by an older cousin.
Appellant was the last witness to testify at his punishment hearing. Appellant
denied posting the suggestive and sexually-explicit photographs online. Appellant
said Erica Romero was lying about the incident that occurred after he gave her a
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ride home from the party. Appellant admitted his interactions with Complainant
were wrong.

      After the close of evidence, the trial court sentenced Appellant to 10 years’
imprisonment for the solicitation conviction and 20 years for the indecency
conviction. The trial court’s final judgments state that these sentences are to run
concurrently. Appellant timely appealed.

                                       ANALYSIS

       In his sole issue on appeal, Appellant argues the trial court erred when it
permitted Erica Romero 1 to testify regarding the alleged rape that occurred
approximately 18 years before the punishment hearing. Appellant asserts this
evidence should have been excluded under Texas Rule of Evidence 403. Appellant
raised this issue in the underlying proceeding and preserved it for our review. See
Tex. R. App. P. 33.1(a).

       We presume, without deciding, that the trial erred in overruling Appellant’s
Rule 403 objection to Erica’s testimony. We review the erroneous admission of
evidence for non-constitutional error and reverse only if the appellant shows the
erroneous admission affected his substantial rights. Tex. R. App. P. 44.2(b); Coble
v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); see also Rodriguez v. State,
546 S.W.3d 843, 864-65 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (applying
a non-constitutional error analysis to alleged erroneous admission of evidence
during punishment hearing). A substantial right is affected when the error had a
substantial and injurious effect or influence in determining the fact-finder’s verdict.
Coble, 330 S.W.3d at 280; see also Torres v. State, 424 S.W.3d 245, 260 (Tex.
App.—Houston [14th Dist.] 2014, pet. ref’d). But if the improperly-admitted

      1
          Because Erica Romero shares the same last name as another witness, we hereinafter
refer to her by her first name to avoid confusion.

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evidence did not influence the fact-finder or had but a slight effect upon its
deliberations, such non-constitutional error is harmless. Coble, 330 S.W.3d at 280;
Torres, 424 S.W.3d at 260.

      In performing this analysis, we examine the entire record and calculate, as
much as possible, the probable impact of the error upon the rest of the evidence.
Torres, 424 S.W.3d at 260. We consider any testimony or physical evidence
admitted for the fact-finder’s consideration, the nature of the evidence supporting
the fact-finder’s decision, the character of the alleged error, and how it might be
considered in connection with other evidence in the case. Bagheri v. State, 119
S.W.3d 755, 763 (Tex. Crim. App. 2003).

      After reviewing the record, we conclude that any error in the admission of
Erica’s testimony did not affect Appellant’s substantial rights. The trial court
assessed punishment for two offenses to which Appellant pleaded guilty: online
solicitation of a minor and indecency with a child by sexual contact. The trial
court sentenced Appellant to 10 years’ and 20 years’ imprisonment, respectively.
Excluding Erica’s testimony, the evidence in the record is sufficient to support the
trial court’s punishment assessments.

      Complainant testified in detail regarding the events underlying these
offenses.   Admitted into evidence during Complainant’s testimony were text
messages between Appellant and Complainant, many of which were sexually-
explicit. During his testimony, Appellant acknowledged sending the text messages
to Complainant even though he knew she was under 17 years old. When asked
about the details of the two sexual encounters, Appellant summarily stated that he
did not recall what happened.

      Four women testified at Appellant’s punishment hearing regarding the
online publication of their suggestive and sexually-explicit photographs.
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Approximately 100 pages of these images were admitted into evidence, many of
which are extremely graphic. The women testified that some of the photographs
were taken by Appellant whereas others were pictures that had been sent to
Appellant. Appellant denied posting these photographs and agreed that it was “just
happenstance” that his “ex-girlfriends’ photographs ended up on the internet.”

       In addition, Chris Ryan testified about text messages she received from
Appellant showing a young teenage girl posing suggestively while wearing
lingerie. Lorita Schulze also testified about an incident that occurred while she
was incarcerated, during which Appellant asked her to give him oral sex. Schulze
said she complied with the request because she felt “intimidated.”

       As this recitation shows, substantial evidence supports the trial court’s
punishment assessments. Weighed against this backdrop, Erica’s testimony about
an incident that occurred approximately 18 years earlier would have had at most a
slight effect upon the trial court’s determinations.                 Erica provided a brief
description of the alleged rape, which comprised approximately 15 pages of the
over 300-page record. Describing the incident, Erica said Appellant gave her a
ride home from the party and that they kissed during the ride. Erica testified that
she became uncomfortable and asked Appellant to take her home; Appellant
responded that he would take her home after they had sex. Erica testified that they
“end[ed] up having sex and then he t[ook] [her] home.”

       Providing further context for this description, Appellant’s trial counsel
cross-examined Erica at length about certain details she was unable to recall.
Appellant also addressed Erica’s allegations, denied that the incident occurred, and
testified that the case was “no billed.”2 This testimony likely lessened the impact

       2
        When a case is “no billed,” the grand jury chooses not to indict. See, e.g., Bass v. State,
Nos. 14-05-00865-CR, 14-05-00866-CR, 2009 WL 3839003, at *4 (Tex. App.—Houston [14th
                                                6
of Erica’s testimony — particularly in light of the other extraneous offenses
admitted into evidence, which were more recent and substantially more graphic.

       After examining the entire record, we conclude Erica’s testimony did not
influence the trial court’s punishment assessments or had but a slight effect. See
Tex. R. App. 44.2(b); Coble, 330 S.W.3d at 280. We overrule Appellant’s issue on
appeal.

                                         CONCLUSION

       We affirm the trial court’s judgment.



                                              /s/       Meagan Hassan
                                                        Justice


Panel consists of Justices Wise, Jewell, and Hassan.

Do Not Publish — Tex. R. App. P. 47.2(b).




Dist.] June 18, 2009, pet. ref’d) (mem. op., not designated for publication).

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