No. 10-04-00338-CR
Opinion delivered and filed March 1, 2006. DO NOT PUBLISH.
Appeal fromthe 54th District Court, McLennan County, Texas, Trial Court No. 2004-583-C. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
BILL VANCE, Justice.
Appellant Elizabeth Pittillo was convicted on two counts of Aggravated Sexual Assault of her son, R.P., and sentenced to life in prison. R.P. testified at trial that his mother forced him to have sex with her over twenty times and with his younger sister, W.P., over five times. R.P. testified that these acts occurred at the family's trailer house and at the C E Motel. Pittillo brings five issues on appeal. First, she argues the trial court erred in not giving a limiting instruction each time extraneous offenses were introduced at trial. Second, she argues the trial court erred in failing to force the State to elect which acts it was relying upon for conviction. Third, she argues the trial court erred in allowing victim impact testimony into the guilt phase of the trial. Fourth, she argues the trial court erred in failing to grant her request for a mistrial. Finally, Appellant argues Texas Code of Criminal Procedure article 38.37 is unconstitutional.
Limiting Instructions
Pittillo complains that the court failed to provide a limiting instruction when the State offered evidence of extraneous offenses. "When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. . . ." TEX. R. EVID. 105(a) (emphasis added). During the testimony of R.P., W.P., and Dr. Ann Sims of the Child Advocacy Center, Pittillo requested a limiting instruction to testimony concerning the number of times she assaulted R.P., the location of the assault, and testimony that W.P. witnessed Pittillo assault R.P. Each time Pittillo requested a limiting instruction, the court gave the instruction to the jury or reminded the jury of the instruction. However, a limiting instruction was not required. "An extraneous offense is defined as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers." Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App. 1996). "The `on or about' language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period." Shea v. State, 167 S.W.3d 98, 104 (Tex.App.-Waco 2005, pet. ref'd) (citing Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997)). The indictment alleges that Pittillo "on or about" June 30, 1999 caused the sexual organ of R.P. to "contact or penetrate the sexual organ of the Defendant" and "on or about" July 1, 1999, caused the sexual organ of R.P. to "contact or penetrate the sexual organ of [W.P.]" Because each of the purported extraneous acts could have been prosecuted under the indictment, they were not extraneous, and no limiting instruction was required. Accordingly, we overrule Pittillo's first issue. Election
Pittillo argues that the trial court erred in failing to make the State elect which acts it was relying on for conviction. Pittillo requested that the State elect on several occasions throughout the presentation of the State's case. The court denied each request for election. Citing O'Neal, the State argued that it was within the court's discretion to allow the State to wait until it concluded presenting all of its evidence before electing. O'Neal v. State, 746 S.W.2d 769 (Tex.Crim.App. 1988). Pittillo's counsel acknowledged that was "a correct statement of the law." Specifically, O'Neal provides that the trial court, in its discretion, may order the State to make its election prior to resting its case in chief. Id. at 771. However, once the State rests and upon a timely request by the defendant, the trial court must order the State to elect. Id. In the present case, Pittillo failed to renew her request for election after the State rested its case. We find the court did not abuse its discretion in denying Pittillo's requests and for failing to force an election without a request after the State rested. We overrule the second issue. Victim Impact Testimony
Next, Pittillo challenges the admission of testimony regarding R.P.'s "sexually acting out" after he was placed in foster care. She further claims that the court erred in denying her request for mistrial based on the admission of this evidence. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002). The court of appeals should reverse when the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Id. Evidence is relevant if it tends to make a fact of consequence more or less probable. TEX. R. EVID. 401. Generally, evidence of the victim's future hardship is irrelevant at the guilt-innocence stage because it does not tend to make more or less probable the existence of any fact of consequence. Miller-El v. State, 782 S.W.2d 892, 895 (Tex.Crim.App. 1990). In this case, testimony regarding R.P.'s "sexually acting out" would have a tendency to make more or less probable a fact of consequence at the guilt stage; that is, whether Pittillo committed the crime at all. Longoria v. State, 148 S.W.3d 657, 660 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). We do not find that the trial court's admission of this evidence was so clearly wrong as to lie outside the zone of reasonable disagreement. We therefore overrule the third and fourth issues. Article 38.37
In her fifth issue, Pittillo contends that article 38.37 of the Code of Criminal Procedure is unconstitutional. See TEX. CODE CRIM. PROC. ANN. art. 38.37 (Vernon Supp. 2005). We have previously held article 38.37 to be constitutional. Brantley v. State, 48 S.W.3d 318, 330 (Tex.App.-Waco 2001, pet. ref'd). Pittillo's fifth issue is overruled. Conclusion
Having overruled Pittillo's five issues, we affirm the trial court's judgment.