Opinion
No. 14-05-01134-CR
Judgment rendered and Memorandum Opinion filed June 28, 2007. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 178th District Court Harris County, Texas, Trial Court Cause No. 998838.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
MEMORANDUM OPINION
Appellant Richard Daniel Hassenplug was convicted for the felony offense of indecency with a child, and the jury assessed punishment at twenty years' confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant contends on appeal that the trial court erred by admitting evidence of extraneous offenses during the guilt/innocence phase of trial and by failing to instruct the jury on the burden of proof for extraneous offenses at the punishment phase of trial. Appellant also argues that he received ineffective assistance of counsel throughout his trial. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
On July 4, 2004, the complainant's mother received a telephone call from a relative in Florida that caused her concern regarding the conduct of her uncle, appellant Richard Daniel Hassenplug, towards her two minor daughters during the previous summer. One daughter, E.V., subsequently gave a videotaped interview to a forensic interviewer at the Children's Assessment Center. As a result of E.V.'s statements, appellant was indicted for indecency with a child by contact for causing E.V. to touch his genitals. Before trial, the State informed appellant of its intent to call six out-of-state witnesses to present evidence that appellant had repeatedly committed acts of indecency with children in Florida since 1968. Appellant's defense counsel filed pretrial objections and a motion in limine regarding the use of such testimony. At trial, Detective Joe Stephens of the Pasadena Police Department testified that he was assigned to the case on July 14, 2004, based on information received from another state. He reviewed the videotaped interview of E.V. performed by forensic interviewer Lisa Holcomb. After Stephens testified, the trial court conducted a hearing on appellant's motion in limine regarding extraneous-offense evidence outside the presence of the jury. After the State represented to the court that it would not present evidence of extraneous offenses committed in Florida, the trial court denied appellant's motion. When the trial resumed, E.V. testified that in the summer of 2003, when she was six years old, appellant touched her genitals under her clothes using his hand. According to E.V., her sister was present on this occasion. She further testified that on a prior occasion appellant woke E.V. and made her touch his "private," which E.V. said felt "hard" and which she compared to a cucumber. According to E.V., her sister was asleep in the adjacent bed during this incident. E.V. also testified that appellant brought pornographic movies to her home and showed them to the two girls while babysitting them. According to E.V., appellant "humped the floor" while watching the movie with the children. E.V. further testified that appellant showed the girls pornographic drawings of cartoon characters. She also stated that appellant wore a women's pair of red underwear that exposed his buttocks and then made her wear the same garment. She testified that appellant put his private part between her legs while she was in bed at night. E.V. further testified that on two occasions appellant photographed her while she was changing clothes. E.V.'s mother testified that E.V. had described the same events to her. E.V.'s sister C.V. also testified that appellant brought pornographic movies with him to the girls' home and watched them with the children when their parents were not home. She offered a description of appellant's behavior during the movie that was similar to the description given by E.V. and also testified that appellant wore women's red underwear. C.V. further testified that appellant showed her pornographic cartoon drawings and a photograph of a woman having sex with a horse. Although C.V. stated that she never saw appellant with a camera, she testified that she saw him touch E.V. "in the private part" while E.V. pushed him and tried to get away from him. Finally, C.V. testified that appellant had also grabbed her hand and placed it on his genitals. Appellant's brother Paul Hassenplug testified that appellant had lived with him for most of the last ten years. According to Paul, he had seen appellant around women and children many times and had never observed him behaving inappropriately on these occasions. When asked, "[h]ave you had occasion to see him in these context[s] on many occasions?" appellant's brother replied, "That's a fact. I mean, nobody in my whole family has ever seen him do anythingC" At this point, the State objected that the answer was nonresponsive and constituted improper character evidence, and the trial court sustained the objections. Neither appellant nor the State requested the trial court to instruct the jury to disregard this testimony, and the trial court did not give such an instruction. When the defense passed the witness, the State argued that this line of questioning had opened the door to evidence of extraneous offenses. Outside of the jury's presence, appellant's attorney argued that extraneous-offense evidence would be inflammatory and prejudicial. After conducting an evidentiary hearing, the trial court stated that it would permit one of appellant's nephews and two of his nieces to testify in the State's rebuttal case. When the trial resumed, Paul finished testifying, and then appellant took the stand. Appellant testified that he was honorably discharged from the United States Navy in 1967. He further testified that he had a stroke in 1988 and a second stroke nine years later. Appellant stated that he began having seizures in 1995 and presented medical records from January 29, 2004, which indicated that he was diagnosed as impotent and suffered from erectile dysfunction. Appellant testified that he was first diagnosed with impotence in late 1997 or early 1998 and that treatment with Viagra and testosterone was unsuccessful. According to appellant, he had not had an erection since 1998. He denied all of the allegations against him and testified that there was a conspiracy against him. On rebuttal, appellant's nine-year old niece, H.T., testified that in 2004, appellant touched her privates and asked her to touch his erect penis. She further testified that appellant told her about taking pictures of young girls and about having sex. According to H.T., appellant told her that when he lived with E.V.'s family, he had oral sex with E.V. and that she rubbed his penis. Finally, H.T. testified that appellant tried to put his genitals between her legs when she was sleeping. H.T.'s eight-year old brother J.T. testified that appellant exposed himself to J.T., to H.T., and to one of his cousins at the same family gathering. He could not remember if this cousin was the complainant E.V. or her sister C.V. Nineteen-year old S.O., another of appellant's nieces, testified that when she was thirteen, appellant asked her if she wanted to watch a pornographic movie, but she declined. She further testified that she once spent the night at the mobile home appellant shared with his brother and she woke to find appellant rubbing her privates. At that time, she was approximately fourteen years old. According to S.O., appellant repeated the behavior during a family gathering when S.O. was sixteen years old, even though she had taken the precaution of sleeping in a bed in between her older brother and a male cousin. Appellant was convicted of indecency with a child. During the punishment phase of trial, the State offered the testimony of two adult witnesses who testified in detail about additional unadjudicated sexual offenses. Appellant's niece K.S. testified that thirty years earlier, appellant molested her in a van in Florida while her father remained outside the van speaking with a police officer about a traffic accident. K.S. also testified that when she was nine years old, appellant forced her to perform oral sex on him. She also stated that when she was twelve years old, she was visiting appellant's family and appellant woke her and had sex with her. She further testified that when she was fifteen years old, she saw appellant touch the genitals of two sleeping girls who were friends of the family; according to K.S., the girls were nine and twelve years old at the time. Appellant's former sister-in-law L.S. testified that appellant had touched her genitals more than thirty-seven years earlier, when L.S. was approximately seven years old. L.S. is eight years younger than her sister Brenda, who was married to appellant at the time, and because Brenda cared for L.S. while their mother worked, L.S. often stayed at the home Brenda and appellant shared. According to L.S., appellant would get into bed with her at night and put his penis between her legs. She testified that this behavior occurred from the time she was nine years old until she was twelve. According to L.S., appellant last molested her thirty years earlier, when she was fifteen years old. Both K.S. and L.S. testified to the harmful effects they suffered as a result of appellant's actions. The jury assessed a $10,000 fine and assessed punishment at twenty years' imprisonment.II. ISSUES PRESENTED
Appellant presents five issues for our review. In his first issue, he argues the trial court abused its discretion in admitting testimony regarding third-party extraneous offenses of indecency with a child to show his propensity to commit such an offense. Appellant argues in his second issue that the trial court abused its discretion in admitting the State's evidence of extraneous offenses in violation of Texas Rule of Evidence 403. In his third issue, appellant contends the trial court reversibly erred by failing to instruct the jury on the burden of proof regarding extraneous-offense evidence during the punishment phase of trial. In his fourth and fifth issues, appellant argues he was denied effective assistance of counsel at both phases of trial as guaranteed by the Texas and United States Constitutions. For the sake of clarity, we discuss the issues in chronological order rather than in the order presented.III. ANALYSIS
A. THE GUILT/INNOCENCE PHASE OF TRIAL
1. Evidence of Extraneous Offenses When reviewing a trial court's decision to admit evidence of extraneous offenses, we will reverse only if the trial court abused its discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). In making this determination, we consider whether the court acted without reference to guiding rules and principles — that is, whether the court acted arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App. 1993) (en banc). We must uphold the trial court's ruling if it is "within the zone of reasonable disagreement." Wheeler v. State, 67 S.W.3d 879, 888 (Tex.Crim.App. 2002) (en banc). We apply the same deferential standard to our review of the trial court's determination that the probative value of the evidence is not outweighed by the danger of unfair prejudice. Moses, 105 S.W.3d at 627. a. Paul Hassenplug's Testimony Appellant contends in his first issue that the trial court abused its discretion in admitting testimony regarding third-party extraneous offenses of indecency with a child because the testimony only tended to show his propensity to commit the offense of indecency with a child. Although appellant's arguments indicate otherwise, appellant did not voice any of the following objections in the trial court regarding the testimony of the three witnesses in the State's rebuttal case: (1) that their testimony was not relevant, (2) that their testimony only tended to show appellant's propensity to commit the offense of indecency with a child, or (3) that their testimony was inadmissible character evidence under Texas Rule of Evidence 404. Therefore, appellant did not preserve error as to these complaints. See TEX. R. APP. P. 33.1; Heidelburg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004) (en banc) (stating "[i]t is well-settled that the legal basis of a complaint raised on appeal cannot vary from that raised at trial"). Appellant did preserve error as to the following two complaints regarding the testimony in the State's rebuttal case: (1) the testimony of Paul Hassenplug did not create a false impression, and (2) the prejudicial nature of this testimony outweighed its probative value. As to the first complaint, Paul Hassenplug testified on direct examination during appellant's case-in-chief as follows:• Paul is appellant's brother, and the two men have lived together in Florida consistently for the last ten years.
• Paul has had occasion to observe appellant at family gatherings "all the time" and on "many occasions."
• Paul observed appellant around females and children on "many occasions."
• Paul has never observed appellant act inappropriately around a female or a child.
• Paul has observed appellant in these contexts on many occasions, and "nobody in [his] whole family has ever seen [appellant] do anything — "Appellant asserts that Paul's testimony was based on his personal knowledge from living in the same home with appellant for ten years and on his personal observations at family gatherings that included females and children. While these statements are true as to most of Paul's testimony on direct examination, Paul also made a statement that gave the jury the impression that no one in Paul's entire family had ever seen appellant do anything inappropriate around a child. If Paul's statement were correct, then significant portions of the testimony of complainant and her sister in the State's case-in-chief were false, as wer various parts of the three witnesses' testimony during the State's rebuttal case. Therefore, we hold that the trial court did not abuse its discretion in concluding that Paul's testimony created a false impression as to the observations of Paul's family members regarding appellant's behavior around women and children. See Daggett v. State, 187 S.W.3d 444, 453 n. 24 (Tex.Crim.App. 2005) (stating that, when a witness testifies to good conduct by the defendant in a manner directly relevant to the charged offense, this testimony can open the door for the State to offer extrinsic evidence to rebut the statement); cf. United States v. Antonakeas, 255 F.3d 714, 724-25 (9th Cir. 2001) (concluding that, under analogous Federal Rules of Evidence, testimony during direct examination in defendant's case-in-chief created a false impression that defendant had a history of non-involvement with illegal drugs); Baumann v. State, 891 A.2d 146, 147-49 (Del. 2005) (applying Delaware's similar rules of evidence and concluding that testimony that defendant always tries to treat women very nicely created a false impression about defendant's conduct toward women). Because appellant's argument under the first issue that was preserved in the trial court lacks merit, we overrule appellant's first issue. b. Rule 403 Balancing Test In his second issue, appellant contends the trial court abused its discretion in determining that the probative value of the testimony of the State's rebuttal witnesses was not substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. A Rule 403 analysis as to unfair prejudice requires the trial court to balance (1) the probative value of the evidence, (2) the potential of the evidence to impress the jury in an irrational but indelible way, (3) the time needed to develop the evidence, and (4) the proponent's need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App. 2004). Although appellant suggests in his brief that the trial court did not conduct a Rule 403 balancing test, there is no evidence in the record to support this contention. See Williams v. State, 958 S.W.2d 186, 195-96 (Tex.Crim.App. 1997) (en banc) (stating that trial court is presumed to have performed balancing test if it overrules an objection under Rule 403); Howland v. State, 966 S.W.2d 98, 103 (Tex.App.-Houston [1st Dist.] 1998) (noting that the trial court "need not conduct a formal hearing or even announce on the record that it has mentally conducted this balancing test"), aff'd, 990 S.W.2d 274 (Tex.Crim.App. 1999). The testimony of the rebuttal witnesses was highly probative of the veracity of Paul's statement indicating that none of his family members had ever seen appellant do anything inappropriate around a child. Measuring the trial court's ruling against the relevant criteria by which a Rule 403 decision is made, we conclude the trial court did not abuse its discretion in determining that the probative value of the rebuttal evidence was not substantially outweighed by the danger of unfair prejudice. See Page v. State, 213 S.W.3d 332, 337-38 (Tex.Crim.App. 2006) (holding trial court did not abuse its discretion in concluding that probative value of extraneous sexual-assault offenses was not substantially outweighed by the danger of unfair prejudice). Accordingly, we overrule appellant's second issue. 2. Ineffective Assistance of Counsel Appellant argues that he was denied effective assistance of counsel during the guilt/innocence phase of trial under both the State and federal Constitutions because his trial counsel (a) opened the door to third-party extraneous-offense evidence, (b) failed to request a mid-trial limiting instruction for extraneous-offense evidence or to object to the written jury instruction that broadened the theory of admissibility of the extraneous-offense evidence, and (c) failed to object to an untimely jury shuffle. We review appellant's claim of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, an appellant must prove by a preponderance of the evidence that counsel's representation fell below the objective standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Id. at 687, 104 S. Ct. at 2064. This test applies to claims arising under the Texas Constitution as well as those arising under the United States Constitution. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986) (en banc). Confronted with a silent record, we must begin our review with the strong presumption that counsel's actions were motivated by sound trial strategy, and we will not conclude the representation was deficient unless the attorney's conduct was so outrageous that no competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). We sustain allegations of ineffective assistance only if firmly founded in a record that affirmatively demonstrates the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (en banc), abrogated on other grounds by Mosley v. State, 983 S.W.2d 249, 263 n. 18 (Tex.Crim.App. 1998) (en banc). The record on direct appeal is usually inadequate to overcome the presumption and show that counsel's conduct fell below an objectively reasonable standard of performance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). But if the attorney's conduct was so outrageous that no competent attorney would have engaged in it, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the attorney's subjective reasons for the act or omission. Goodspeed, 187 S.W.3d at 392. a. Opening the Door to Admission of Third-Party Extraneous Offense Evidence Appellant first argues that his trial counsel was ineffective because he opened the door to the admission of extraneous-offense evidence by eliciting testimony from Paul Hassenplug that "nobody in my whole family has ever seen him do anything[.]" However, this testimony was not elicited by appellant's trial counsel, but was volunteered by the witness. Moreover, even if appellant's trial counsel had engaged in conduct that resulted in the admission of the testimony from the State's rebuttal witnesses, appellant has not shown by a preponderance of the evidence that there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. b. Failure to Request that the Trial Court Conduct a Balancing Test under Rule 403 Appellant also asserts that the trial court overruled his Rule 403 objection to the testimony of the State's rebuttal witnesses without conducting a balancing test and that appellant's trial counsel was ineffective for not requesting the trial court to perform the balancing test. However, because the trial court overruled appellant's Rule 403 objection, we presume that it did conduct a balancing test under this rule. See Williams, 958 S.W.2d at 195-96. Therefore, appellant's counsel cannot have been ineffective in failing to request the trial court to perform this balancing test. c. Failure to Request a Limiting Instruction or Object to the Written Jury Instruction Regarding Extraneous-Offense Evidence During the guilt/innocence phase of trial, the jury received a limiting instruction regarding extraneous offenses. Here, appellant argues that his defense counsel rendered ineffective assistance because he failed to object to this limiting instruction on the ground that it included theories of admissibility for the rebuttal testimony that went beyond those asserted by the State. Appellant also alleges that his trial counsel was ineffective in failing to request a mid-trial limiting instruction regarding evidence of extraneous offenses. See TEX. R. EVID. 105(a). The record contains no evidence regarding the reasons appellant's defense counsel chose not to take such actions, but the attorney's conduct in failing to take these actions was not so outrageous that no competent attorney would have done so. Goodspeed, 187 S.W.3d at 392. On the record before us, we cannot conclude that defense counsel's actions constituted ineffective assistance. See Garcia v. State, 887 S.W.2d 862, 881 (Tex.Crim.App. 1994) (en banc) (holding that a decision not to request a limiting instruction was not an unreasonable trial strategy because such a request might "draw more attention to the incriminating evidence in the statements"), abrogated on other grounds by Hammock v. State, 46 S.W.3d 889 (Tex.Crim.App. 2001). In addition, appellant has not shown a reasonable probability that, but for the alleged deficiency, the result of the proceeding would have been different. Strickland, 466 U.S.at 687, 104 S. Ct. at 2064. d. Failure to Object to the Jury Shuffle Appellant also argues that his trial counsel rendered ineffective assistance by failing to object to the timing or manner of a jury shuffle performed after voir dire. However, it was appellant's trial counsel who requested the jury shuffle through a written motion filed more than six months before trial. Although the record does not contain a signed order on the motion, the motion was granted in open court. Under the applicable standard of review, we must presume that trial counsel had a sound trial strategy for failing to object to actions taken by the trial court at counsel's own request. There is no evidence in the record supporting appellant's claims that these actions were not motivated by a sound trial strategy, and we conclude that failing to object to such a jury shuffle was not so outrageous that no competent attorney would have engaged in that conduct. Goodspeed, 187 S.W.3d at 392. Accordingly, we overrule appellant's fourth and fifth issues as they pertain to claims of ineffective assistance of counsel at the guilt/innocence phase of trial.
B. THE PUNISHMENT PHASE OF TRIAL
Appellant next contends that he is entitled to a new punishment trial because the trial court failed to instruct the jury that it must find beyond a reasonable doubt that appellant committed extraneous offenses before it could consider evidence of such offenses in assessing punishment. Appellant similarly argues that his attorney's failure to object to the omission of such an instruction constitutes ineffective assistance of counsel. To analyze these issues, we must begin by determining whether the omission of the instruction constituted error.1. Charge Error by the Trial Court
During the punishment phase of trial, the State may offer evidence of the defendant's extraneous offenses that are "shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible. . . ." TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (Vernon 2006) (emphasis added). If extraneous-offense evidence is admitted during the punishment phase of trial, then the trial court is required to give the jury a reasonable-doubt instruction even if none is requested by defense counsel. Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000). Here, the jury charge contained no such instruction. Thus, the trial court erred in omitting this instruction from the jury charge. The State argues that the extraneous offenses are same-transaction contextual evidence, and thus, the reasonable-doubt instruction was not required. We disagree. Same-transaction contextual evidence is evidence that "imparts to the trier of fact information essential to understanding the context and circumstances of events which, although legally separate offenses, are blended or interwoven." Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993) (en banc). It is admissible "[o]nly if the facts and circumstances of the instant offense would make little or no sense without also bringing in the same[-] transaction contextual evidence. . . ." Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App. 1993) (en banc). None of the occurrences described by the extraneous-offense witnesses form part of the same transaction as the offense for which appellant was convicted. None of them were performed in the same State or in the same year as the charged offense. To the contrary, the offenses are separated geographically by several states and by a temporal gap that spans as much as a generation; at the time of some of the offenses, the complainant in the instant case was not even born. Moreover, if the extraneous-offense evidence was needed to understand the circumstances of the charged offense, then the State presumably would have offered its extraneous-offense witnesses in its case-in-chief. At that time, the State apparently found this evidence unnecessary to the jury's understanding of the facts concerning the charged offense. We agree with that determination. We therefore conclude that the extraneous-offense evidence was not same-transaction contextual evidence, and thus, a reasonable-doubt instruction was required. Because the instruction was omitted, we must analyze the resulting harm, if any.2. Harm Analysis
The standard of review for errors in the jury charge varies according to whether the defendant properly objected. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (en banc) (op. on reh'g). "If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is 'calculated to injure the rights of defendant,' which means no more than that there must be some harm to the accused from the error." Id. If a proper objection was not made at trial, reversal is required only if the error is so egregious and created such harm that the defendant was denied a fair and impartial trial. Id. Here, appellant's trial counsel affirmatively stated he had no objection to the charge; thus, we may not reverse based on the trial court's error unless it caused appellant egregious harm. To determine the degree of harm, we review the record as a whole to Ailluminate the actual, not just theoretical, harm to the accused." Id. at 174. Harm is assayed in light of (a) the entire jury charge; (b) the state of the evidence, including the contested issues, and weight of probative evidence; (c) the arguments of counsel; and (d) any other relevant information revealed by the record of the trial as a whole. Id. at 171. In conducting our review, we focus on the effect of the instruction's omission, and not only the evidence at issue. See Ellison v. State, 97 S.W.3d 698, 701 (Tex.App.-Texarkana 2003, no pet.). We first note that appellant complains of no other error in the jury charge. Moreover, the day before the punishment phase began, the jury was instructed at the close of the guilt/innocence phase of trial to consider evidence of extraneous offenses only if it found, beyond a reasonable doubt, that the defendant had committed the extraneous offenses. Thus, no other charge error increased the harm to appellant from the omission of a reasonable-doubt instruction regarding extraneous-offense evidence. Second, at the time of the punishment-phase charge error, the jury had already found appellant guilty beyond a reasonable doubt of the offense of indecency with a child; thus, the contested issue was the appropriate punishment. In considering this issue, the jury was permitted to consider the evidence presented at the guilt/innocence phase of trial as well as the punishment-phase evidence and jury charge. Although a jury could consider appellant's age, his honorable military service, and the absence of prior convictions as evidence indicating that a shorter sentence might be appropriate, the evidence also presented countervailing considerations. For example, the jury could consider the extreme youth of the complainant at the time of the offense, the defendant's position as a trusted relative, his status as a guest in the complainant's home, and his willingness to commit such an offense even at the risk of being detected by another witness. These relevant factors were not affected by charge error. We next examine the arguments of counsel, and note that the prosecutor emphasized the extraneous-offense evidence in arguing for the maximum sentence of twenty years' confinement and a $10,000 fine. Specifically, the State argued that appellant is a "serial pedophile" who had "victimized nine people" over a period of thirty-seven years. Speaking of the minor witnesses E.V., C.V., H.T., and J.T., the prosecutor argued, "don't let them go through the struggle that [L.S.] has gone through and [K.S.] has gone through. You have the opportunity as you sit here as 12 individuals to stop this cycle. Because this is a perfect case to describe how pedophiles can infiltrate a family and destroy it." We note that at the time the prosecutor made these arguments, the jury was already familiar with the arguments, because at the close of the guilt/innocence phase of trial, in which a reasonable-doubt instruction was given, the State presented a similar theme but without the addition of the adult witness extraneous-offense evidence offered during the punishment phase of trial:This family, they cared about their family reunions. They were close. They loved each other. There is no [sic] absolutely zilch motive that any of these people would make it up against him. I mean, is it pure coincidental [sic] that people from all over the country were affected by him? He left quite a road map. He's left quite a trail of things that have happened. . . . He is the perfect definition of a pedophile. He is grooming the people that he is around.Although the additional extraneous-offense testimony offered during the punishment phase of trial arguably strengthened this theme by including evidence of more serious offenses committed a generation earlier, appellant's attorney reminded the jury that, although extraneous offenses had been alleged, the merits of those allegations had not been determined. Of course, "jury argument is not a substitute for a proper jury charge." Arline v. State, 721 S.W.2d 348, 353 n. 8 (Tex.Crim.App. 1986) (en banc). Thus, this reminder that the extraneous offenses had not been proved does not eliminate charge error. But just as the argument by appellant's counsel does not determine the absence of harm, the arguments of the State emphasizing extraneous offenses does not alone establish harm. "[J]ury argument is never alone a controlling factor in an Almanza harm analysis." Hutch v. State, 922 S.W.2d 166, 174 (Tex.Crim.App. 1996) (en banc). Rather, it is only one factor to be considered in deciding if an accused has suffered egregious harm. Ruiz v. State, 753 S.W.2d 681, 686 (Tex.Crim.App. 1988) (en banc). Finally, we consider any other evidence revealed by the record of the trial as a whole. During the guilt/innocence phase of trial, five of appellant's relatives testified that he had engaged in sexually inappropriate behavior with them; all of them were children at the time of the offenses, and the jury received a reasonable-doubt instruction regarding these extraneous offenses the day before the punishment phase. See Gholson v. State, 5 S.W.3d 266, 271 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). This evidence is sufficient to support the State's theme that appellant is a serial offender who preys on his own family and justify the imposition of the maximum sentence. Equally important, we note that appellant was asked during the punishment phase of trial, "if the jury would see fit to order that you have no contact whatsoever with any children, would you have any problem with that?" Appellant responded, "Absolutely none. Well, I may have reservations, you know, on family members, but if I have to do that, I'll abide by it." (emphasis added). Appellant's reluctance to accept restrictions that would protect the very population from which the complainant was drawn offered further encouragement to the jury to confine appellant for as long as the law allowed. Finally, although appellant stated that he accepted the jury's finding of guilt, he also testified that each of the witnesses against him was lying, and reiterated that "[i]t just seems too coincidental that they all seem to have the same story line and sometimes almost the exact same words." The jury easily could have interpreted this testimony as a failure by appellant to accept responsibility for his criminal behavior. After reviewing the record as a whole, we cannot conclude that the trial court's error in failing to instruct the jury in the punishment-phase charge concerning the extraneous-offense burden of proof is so egregious and created such harm that appellant did not receive a fair and impartial trial. See Almanza, 686 S.W.2d at 171. The record reflects that appellant's trial counsel vigorously defended him. Allen v. State, 47 S.W.3d 47, 51 (Tex.App.-Fort Worth 2001, pet. ref'd) (considering the defense attorney's vigorous defense as a factor in determining whether the absence of the extraneous offense instruction in the punishment phase of trial denied the appellant a fair trial). The jury's assessment of the maximum sentence does not by itself prove egregious harm. The jury would have been justified in assessing the maximum penalty based solely on the facts and circumstances surrounding appellant's commission of the charged offense. On this record, we cannot say it is likely that the jury was more prone to give consideration and weight to the extraneous offenses in the absence of a reasonable-doubt instruction than it would have done if such an instruction had been given, nor does appellant contend that, if a proper instruction had been given, the evidence was insufficient to prove beyond a reasonable doubt that he committed the extraneous offenses. Accordingly, we overrule appellant's third issue.