David Rojas Sanchez v. The State of Texas, 05-25-01367-CR, June 22, 2026.
On appeal from 401st Judicial District Court, Collin County, Texas
Synopsis
No adverse ruling, no appellate complaint. The Dallas Court of Appeals held that an Article 38.37 challenge was not preserved where counsel objected, the trial court said it would “wait and see,” and counsel neither secured a definite ruling nor objected to the court’s failure to rule as required by Texas Rule of Appellate Procedure 33.1.
Relevance to Family Law
Although this is a criminal evidentiary-preservation case, its practical force in Texas family litigation is immediate. In divorce, SAPCR, modification, protective-order, and property-tracing disputes, lawyers routinely make objections during temporary-orders hearings, bench trials, and jury trials, then move on without pinning the court down to an express ruling. Sanchez is a reminder that preservation doctrine is unforgiving: if the court defers, takes the issue “under advisement,” or effectively says “let’s see how the evidence develops,” counsel must either obtain an express or implicit adverse ruling or object to the refusal to rule. Otherwise, the complaint is likely gone on appeal, even where the underlying evidentiary issue may have been substantial.
Case Summary
Fact Summary
David Rojas Sanchez was tried in Collin County on two indecency-with-a-child-by-contact cases. Before trial, the State offered testimony from LF as extraneous-offense evidence under Article 38.37. At the pretrial hearing, LF testified that Sanchez had touched her breast or buttocks over her clothing on several occasions when she was twelve or thirteen years old.
The preservation problem arose because LF could not identify Sanchez in the courtroom. When asked whether she saw him in court, she answered no. On cross-examination, she confirmed that the person who touched her in middle school was “not here in the courtroom today,” at least from her perspective.
Defense counsel objected on that basis, arguing that LF “clearly cannot identify the defendant in open court,” and questioning how she could testify to a prior incident involving Sanchez if she did not know he was in the courtroom. The trial judge responded that she had “a question about that” as well, but noted that identification could be made by an alternative method and stated, “I’ll wait and see on that.”
That was the critical moment. Counsel did not ask for a definitive ruling, did not press for exclusion before the testimony came in, and did not object when LF later testified before the jury about the three extraneous acts. On appeal, Sanchez argued the trial court abused its discretion by allowing LF’s testimony, but the Dallas Court held the complaint was not preserved.
Issues Decided
- Whether a complaint about admission of Article 38.37 extraneous-offense evidence is preserved under Texas Rule of Appellate Procedure 33.1 when the trial court does not expressly rule on the objection.
- Whether the trial court’s statement that it would “wait and see” constituted an adverse ruling, implicit ruling, or instead a non-ruling.
- Whether counsel must press an objection to the point of obtaining a definite adverse ruling, or object to the court’s refusal to rule, to preserve appellate review.
Rules Applied
The court applied Texas preservation doctrine, not the merits of Article 38.37. The key authorities were:
- Texas Rule of Appellate Procedure 33.1, which requires:
- a timely request, objection, or motion stating the grounds with sufficient specificity; and
- a ruling by the trial court, either express or implicit, or a refusal to rule coupled with an objection to that refusal.
- Texas Code of Criminal Procedure article 38.37, sections 2(a)(1)(C), 2(b), and 2-a(1), (2), governing admission of certain extraneous sex-offense evidence and requiring a hearing outside the jury’s presence before admission.
- Dobbs v. State, 699 S.W.3d 799, 806 (Tex. App.—Dallas 2024, no pet.), for the proposition that the record must show an explicit or implicit ruling, or a refusal to rule plus an objection to that refusal.
- Darty v. State, 709 S.W.2d 652, 655 (Tex. Crim. App. 1986), reiterating the longstanding rule that absent an adverse ruling in the record, error is not preserved, and counsel should require the trial judge to make a definite ruling on the record.
Application
The court’s analysis was straightforward and procedural. It acknowledged that Sanchez did make an objection to LF’s testimony at the pretrial Article 38.37 hearing. So the first preservation step was satisfied. But that was not enough.
The problem was that the trial judge never granted or denied the objection. Her statement—“I’ll wait and see on that”—was treated as exactly what it sounded like: a deferral, not an express ruling and not an implicit denial. The appellate court focused on the record’s silence after that point. Counsel did not ask the court to clarify whether the testimony would be admitted. Counsel did not urge the court to make the required admissibility determination before the jury heard the evidence. Counsel did not object when the witness later testified before the jury. And counsel did not object to the trial court’s failure to rule.
That sequence drove the result. Under Rule 33.1, when a trial court refuses to rule or simply does not rule, the objecting party must object to that refusal or failure. And under Dobbs and Darty, counsel must press the point to an adverse ruling. Because Sanchez did not do so, the Dallas Court never reached the substance of his Article 38.37 argument about whether a witness who cannot identify the defendant can supply adequate evidence for jury consideration beyond a reasonable doubt. Preservation failed before the merits began.
Holding
The Dallas Court held that Sanchez failed to preserve his complaint regarding admission of LF’s Article 38.37 testimony. An objection alone did not preserve error where the trial court did not rule and counsel did not object to the court’s failure or refusal to rule.
The court further held that a trial judge’s statement that she would “wait and see” does not, without more, create the adverse ruling necessary for appellate review. Where counsel allows the matter to remain unresolved and the evidence later comes in without securing a ruling or objecting to the lack of one, appellate review is forfeited under Rule 33.1.
Practical Application
For family-law trial lawyers, Sanchez is less about criminal law than about courtroom mechanics. In family cases, preservation errors frequently arise around hearsay, business-record predicates, expert reliability, social-media authentication, child-outcry testimony, privilege disputes, reimbursement evidence, separate-property tracing, and temporary-orders evidence that later migrates into final-trial themes. Judges often respond to objections with variants of “I’ll take that with the case,” “let’s hear it for now,” “I’ll decide later,” or “move along.” Those responses are dangerous if the lawyer treats them as rulings.
In a divorce trial, for example, if opposing counsel offers alleged separate-property tracing through an incomplete summary exhibit and the court says it will “see where this goes,” you do not yet have a ruling. If you want appellate review, you must ask for one. In a conservatorship case, if inflammatory third-party allegations are offered and the court reserves ruling pending later foundation, counsel must re-urge the objection, request exclusion, and obtain a ruling before the evidence is functionally admitted and relied upon. In a protective-order hearing, where pace and informality often erode the record, Sanchez is an especially useful reminder that preservation still governs.
Strategically, the case also underscores the importance of timing. If the court defers at a preliminary hearing, do not assume the objection remains alive indefinitely. Reassert it when the evidence is offered. Ask whether the prior objection is carried with the court’s ruling. If the court refuses to rule, say so clearly and object to the refusal on the record. The appellate court in Sanchez did not rescue counsel from an incomplete record, and neither will most courts in family cases.
Checklists
When the Court Says “Wait and See”
- State the objection clearly and specifically.
- Ask the court for a definitive ruling.
- If the court defers, clarify whether the objection is being carried with the evidence when later offered.
- Re-urge the objection when the evidence is offered at trial or hearing.
- If the court still does not rule, object to the refusal or failure to rule under Rule 33.1.
- Do not assume a deferred comment is an implicit denial.
Preserving Evidentiary Error in Family Cases
- Make the objection timely, before the evidence is admitted if possible.
- State all applicable grounds; do not rely on a vague objection.
- Request an express ruling.
- If the ruling is equivocal, ask for clarification.
- If the court admits the evidence conditionally, renew the objection when the condition fails or remains unmet.
- Obtain a running objection where appropriate, but confirm the court granted it.
- Ensure the court reporter captures the objection, the court’s response, and any follow-up.
- If evidence is excluded, make an offer of proof.
- If the court refuses to rule, object to the refusal on the record.
Article 38.37 Analogues for Family Lawyers
- Challenge identification and authentication issues early.
- Force the court to decide admissibility before highly prejudicial evidence becomes part of the decisional atmosphere.
- Distinguish between “temporary admission subject to connection” and a final ruling.
- Revisit foundation objections when the sponsoring witness fails to connect the evidence.
- Build a clean record showing exactly when the evidence was offered and what the court did in response.
Trial-Notebook Entries to Avoid Sanchez Problems
- Include a preservation script for deferred rulings.
- Mark each objection as: made, ruled on, renewed, and preserved.
- Keep a live exhibit/evidence log noting the court’s ruling status.
- Assign someone at counsel table to track unresolved objections.
- Before resting, identify any objections still awaiting rulings and request them on the record.
Citation
David Rojas Sanchez v. The State of Texas, Nos. 05-25-01367-CR, 05-25-01368-CR, memorandum opinion, 2026 WL ___ (Tex. App.—Dallas June 22, 2026, no pet.) (mem. op., not designated for publication).
Full Opinion
Family Law Crossover
This case can be weaponized effectively in Texas divorce and custody litigation by the lawyer who understands that preservation pressure is often as important as substantive law. If your opponent objects to sensitive evidence—text messages, therapist records, school records, financial summaries, prior protective-order evidence, alleged family violence, or third-party misconduct—and the court responds with a noncommittal deferral, do not help opposing counsel clean up the record. If they do not insist on a ruling, and do not object to the court’s failure to rule, Sanchez becomes your appellate shield.
Conversely, if you are the one facing prejudicial evidence, Sanchez is a cautionary tale. Family cases are especially susceptible to ambiguous rulings because trial courts often proceed pragmatically and absorb evidence first, sort admissibility second, and announce broad conclusions later. That environment is fertile ground for waiver. In a relocation fight, a custody modification, or a disproportionate-division trial, the lawyer who turns “I’ll wait and see” into “Your Honor, for the record, is that a ruling? If not, I object to the refusal to rule and request a ruling now” is the lawyer preserving error for meaningful appellate review.
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