Opinion
No. 05-02-01625-CR
Opinion Filed October 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F00-72407-LH. AFFIRMED
Before Justices MOSELEY, RICHTER, and FRANCIS.
OPINION
A jury convicted Desi Arnaz Polk of indecency with a child under seventeen, and the trial court assessed punishment, enhanced by two prior felony convictions, at forty years in prison. In a single issue, appellant complains the trial court erred in failing to sua sponte instruct the jury at guilt-innocence that an extraneous offense must be proved beyond a reasonable doubt. We affirm. After the State rested, appellant testified in his own defense that he had not had improper sexual contact with O.G. At the beginning of his testimony, he admitted he had two prior felony convictions for theft and unauthorized use of a motor vehicle. With respect to the prior convictions, the judge charged the jury as follows:
You are instructed that certain evidence was admitted in evidence before you in regard to the defendant's having been charged and convicted of offenses other than the one for which he is now on trial. Such evidence cannot be considered by you against the defendant as any evidence of guilt in this case. Said evidence was admitted before you for the purpose of aiding you, if it does aid you, in passing upon the weight you will give his testimony, and you will not consider the same for any other purpose.Relying solely on George v. State, 890 S.W.2d 73, 76 (Tex.Crim.App. 1994), appellant argues the trial court should have also instructed the jury that extraneous offenses must be proven beyond a reasonable doubt before the jury could consider them. In George, the court held that "if the defendant so requests" at the guilt-innocense phase of trial, the trial court must give such an instruction on extraneous offense evidence admitted for a limited purpose under Texas Rule of Evidence 404(b). Id. Here, the evidence was offered by appellant in an attempt to minimize the impeachment effect of the offenses; it was not offered under rule 404(b). Consequently, we conclude the trial court did not err in failing to sua sponte instruct the jury. Even if we were to conclude otherwise, the error would be reviewed for egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). There was no basis for reasonable doubt given that appellant admitted he had been convicted of the offenses. See Elder v. State, 100 S.W.3d 32, 35 (Tex.App.-Eastland 2002, pet. ref'd). We find no merit in appellant's sole issue. We affirm the trial court's judgment.