Opinion
No. 11-03-00242-CR.
March 25, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Palo Pinto County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
OPINION
The jury convicted Johnny Robert Monroe Henry of aggravated sexual assault of a child and assessed his punishment at confinement for life and a $10,000 fine. We affirm the conviction and reverse and remand as to punishment. There is no challenge to the sufficiency of the evidence. Appellant's granddaughter, the victim, testified at trial that in March 1990, when she was seven years old, she went to stay with appellant and her grandmother. The victim testified that, while she was staying at her grandparents' house, appellant came into the room where she was sleeping and pulled down her underwear. The victim said that appellant began "touching and fondling" her and then put his fingers inside of her vagina. The victim said that the encounter lasted approximately 20 minutes and then appellant left. The next morning, the victim noticed some blood in her underwear. The victim put the underwear in her bag and then hid them in her closet when she returned to her house. The victim's mother found the underwear, but the victim told her mother that she used the underwear to wipe some blood from her knee. The victim further testified that she was afraid of appellant because he slept with a gun under his pillow and that her fear was one reason why she did not tell. The victim first told someone about the incident in March 2002. The victim then eventually told her mother. In his first point of error, appellant argues that the trial court erred in admitting evidence of unadjudicated extraneous offenses during the punishment phase of the trial. The trial court held a hearing on appellant's motion in limine pertaining to extraneous offenses. The trial court granted the motion as it pertained to extraneous offenses against persons other than the victim in the present case. The trial court instructed the State to notify the court outside of the presence of the jury of its intent to offer extraneous offenses so that a determination of admissibility could be made. At the punishment phase of the trial, the State offered the testimony of appellant's daughter and another granddaughter concerning unadjudicated extraneous offenses. The trial court ruled that the evidence was admissible pursuant to TEX. CODE CRIM. PRO. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2004). Johnnie Sue Henry Rogers, appellant's daughter, testified at the punishment phase of the trial that in 1952, when she was 11 years old, appellant fondled her breasts and penetrated her vagina with his finger. Rogers said that later appellant "penetrated [her] with his penis." Rogers further testified that, after the initial encounter, the incidents with appellant occurred weekly and continued for many years. Elizabeth Renee Rogers Walls, appellant's granddaughter, testified that in 1969 when she was five years old, she went to appellant's house approximately once a week. Walls stated that, almost every time she visited appellant, he would kiss her with an open mouth and fondle her breasts and vagina both on top of and underneath her clothes. Walls also testified that appellant kept a gun under his pillow and that he told her "wouldn't it be bad if something were to happen to [her] with a gun." Walls stated that appellant moved out of state. She testified that appellant moved back to Texas in 1976, that he began fondling her again, and that he would "grab [her] hand and put it down in his groin area." Appellant argues that these unadjudicated extraneous offenses were not admissible pursuant to TEX. CODE CRIM. PRO. ANN. art. 37.07 (Vernon Supp. 2004) because the offense for which he was tried occurred before September 1, 1993. Prior to September 1, 1993, evidence of unadjudicated extraneous offenses was not admissible during the punishment phase of trials for noncapital offenses. Grunsfeld v. State, 843 S.W.2d 521, 526 (Tex.Cr.App. 1992). Article 37.07, section 3(a)(1) was amended to allow the admission of unadjudicated extraneous offenses at the punishment phase of trial. Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 5.05, 1993 Tex. Gen. Laws 3759. This amendment to Article 37.07 applies only to trials for offenses committed on or after September 1, 1993. Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 5.09 510, 1993 Tex. Gen. Laws 3760-61; Thomas v. State, 923 S.W.2d 611, 613 (Tex.App.-Houston [1st Dist.] 1995, no pet'n) ; Voisine v. State, 889 S.W.2d 371, 372 (Tex.App.-Houston [14th Dist.] 1994, no pet'n). The indictment alleged that appellant committed the offense of aggravated sexual assault on or about March 15, 1990. Therefore, the 1993 amendment to Article 37.07 does not apply to the present case, and the evidence should not have been admitted. The testimony of Rogers and Walls provided the jury with evidence that appellant had sexually assaulted his family members for several decades. We cannot find that such evidence was not harmful to appellant. TEX.R.APP.P. 44.2(b). Appellant's first point of error is sustained. In his second point of error, appellant contends that the trial court erred in admitting evidence of extraneous offenses, wrongs, or bad acts during the guilt/innocence phase of the trial. Appellant complains of two instances where the trial court allowed evidence of extraneous offenses, wrongs, or bad acts. As previously noted, the trial court granted appellant's motion in limine as it related to persons other than the victim in this case. The trial court instructed the State to notify the court before introducing any evidence of extraneous acts. During the direct examination of the victim's mother, the State asked her how she would describe appellant. The victim's mother responded: "[M]ean." The victim's mother then stated that appellant was "verbally abusive to [her] mother-in-law, was always picking at someone." Appellant objected that the conduct did not relate to the victim in the case and was "inappropriate under the orders of the Court." The trial court overruled appellant's objection. On cross-examination of the victim's mother, appellant's counsel asked her whether her mother-in-law would have tried to protect the children. The victim's mother responded that she would try but that she was a "battered woman." Appellant's counsel questioned the victim's mother about whether she had ever seen appellant physically abuse his wife. The victim's mother stated that she never saw appellant hit his wife but that he would "poke her in the ribs, or step on her foot." TEX.R.EVID. 404(b) provides that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith." The testimony of the victim's mother on direct examination of which appellant complains does not relate to a specific instance of a bad act or conduct. Any evidence of specific bad acts of appellant toward his wife was elicited on cross-examination. Ethington v. State, 819 S.W.2d 854, 858 (Tex.Cr.App. 1991). Appellant has not shown that the trial court abused its discretion in allowing the testimony. Powell v. State, 63 S.W.3d 435, 438 (Tex.Cr.App. 2001). Appellant next complains of the State's question to the victim's mother about whether she observed appellant to be in a "cozy relationship" with a much younger woman. Appellant objected that the question was "outside of the Court orders requiring him to come before the Court" and that it was "inappropriate for this case." The trial court found that the question was not "outside any order" entered at pretrial and allowed the victim's mother to answer the question. The victim's mother responded that she did observe the relationship between appellant and a much younger woman and that, as a result, she had a conversation with her daughter. The trial court allowed the victim's mother to "answer what she did in connection with talking to her daughter." The trial court instructed the jury to "disregard any testimony . . . about [appellant] having a relationship with someone in their 20s. The only reason I allowed that was for this witness to say what she did in response to that." We find that the testimony that appellant was observed in a "cozy relationship" with a much younger woman does not relate a specific instance of a bad act or wrong as contemplated by Rule 404(b). Moreover, the trial court instructed the jury to disregard the testimony concerning appellant's relationship with the woman. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Cr.App. 2000). Appellant's second point of error is overruled. Because of our disposition of appellant's first point of error, we need not address his third point of error. TEX.R.APP.P. 47.1. The conviction is affirmed. The judgment as to punishment is reversed, and the cause is remanded for a new hearing on punishment.