Opinion
No. 10-05-00057-CR
Opinion delivered and filed April 12, 2006. DO NOT PUBLISH.
Appeal from the Criminal District Court No. 3, Tarrant County, Texas, Trial Court No. 0926958R. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurs only in the judgment of this case, not this opinion.)
MEMORANDUM OPINION
After considering a charge of burglary of a habitation with intent to commit a felony, a jury found Appellant Paige Louis Benner guilty of the lesser-included offense of aggravated assault with a deadly weapon and sentenced him to fifty years' imprisonment. Benner entered the home of the victim (his estranged wife Amy) by digging a hole underneath it and coming in through a trap door. Once inside, he waited for Amy to return. Amy returned to find Benner in her home, where he held her at knifepoint, threatening to cut off different body parts. Benner had Amy bind herself with duct tape and told her that he wanted to hold her hostage for $30,000 (to come from Amy's mother) because, Benner claimed, he had a fatal liver disease, had two years to live, and wanted the money to live out his life. After suffering a variety of injuries, including superficial cuts, Amy was able to talk her way out of the situation and called police after Benner released her. Benner appeals, asserting in one issue that the trial court erred in admitting extraneous-offense evidence in the punishment phase. We will affirm. Benner had previously been tried for an alleged sexual assault of Amy occurring about a year before this offense. The gist of the sexual assault charge was that Benner physically assaulted Amy, who acquiesced to sex to stop being beaten and restrained. Benner was acquitted of sexual assault; the lesser included offense of aggravated assault was requested by the defense but not submitted. Almost all of the information presented to the trial court on the sexual assault case came from assertions by Benner's counsel and the prosecutor. The State agreed to present evidence on only the alleged physical assault facts that preceded the alleged sexual assault; it agreed to not discuss the alleged sexual assault facts. In only four pages of testimony, Amy testified that Benner angrily awoke her, bit her, choked her, and punched her in the breast. The physical attack lasted for about fifteen minutes and concluded with Benner handcuffing and "toe-cuffing" Amy. Photographs of Amy's injuries from this assault were admitted. Benner's issue argues that the trial court erred in admitting evidence of this alleged assault because he had been acquitted in the aggravated sexual assault trial. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2005) ("evidence may be offered . . . of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant"). Whether an offense (such as aggravated assault) is a lesser-included offense of the charged offense (such as sexual assault) is a case-by-case determination. See Bartholomew v. State, 871 S.W.2d 210, 212 (Tex.Crim.App. 1994); Riley v. State, 830 S.W.2d 584, 584 (Tex.Crim.App. 1992) (aggravated assault was a lesser-included offense of sexual assault). The trial court did not have the record from the sexual assault trial. We will therefore assume that error occurred and proceed to a harm analysis. Error under the Rules of Evidence in admitting evidence is nonconstitutional error governed by Texas Rule of Appellate Procedure 44.2(b). TEX. R. APP. P. 44.2(b); TEX. R. EVID. 103(a); Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001). Rule 44.2(b) provides that a nonconstitutional error "that does not affect substantial rights must be disregarded." Substantial rights are not affected by the erroneous admission of evidence if, after examining the record as a whole, we have fair assurance that the error did not influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 356 (Tex.Crim.App. 2002). In conducting a harm analysis under Rule 44.2(b), we decide "whether the error had a substantial or injurious effect on the jury verdict." Morales v. State, 32 S.W.3d 866, 867 (Tex.Crim.App. 2000). We "consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the error and how it might be considered in connection with other evidence in the case[,] . . . the jury instruction given by the trial judge, the State's theory and any defensive theories, closing arguments, and voir dire if material to appellant's claim." Id. We also consider overwhelming evidence of guilt, but that is only one factor in our harm analysis. Motilla, 78 S.W.3d at 356-58. In addition to the prior physical assault evidence, the State offered evidence of Benner's lengthy criminal history:
• A 1975 felony conviction for theft and burglary;
• A 1980 felony theft conviction;
• A 1991 deferred adjudication for misdemeanor harassment (calling the police station twenty-two times in a row over a traffic incident);
• Two 1991 DWI convictions; and
• A 2002 conviction for a protective order (relating to Amy) violation.The jury also heard evidence of Benner's telephone harassment of Amy, including an audiotape of a phone call in which he warned her to arm herself against him. The tape also disclosed Benner's continued methamphetamine use. Under the circumstances of Benner's lengthy and varied criminal history and threats against Amy, we have a fair assurance that the erroneous admission of the physical assault evidence did not influence the jury or had but a slight effect. Benner's sole issue is overruled. We affirm the trial court's judgment.