No. 10-05-00335-CR
February 28, 2007.
Appeal From the 52nd District Court Coryell County, Texas Trial Court No. 17632.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA, (Chief Justice Gray concurs in the judgment without a separate opinion).
FELIPE REYNA, Justice.
James Joseph Richard was indicted for aggravated sexual assault of a child, K.L. The jury convicted Richard for the lesser included offense of indecency with a child and sentenced him to fifteen years in prison. On appeal, he contends that the court erred by failing to sua sponte include a burden of proof instruction as to extraneous offenses in the guilt-innocence charge and the punishment charge. We affirm.
THE GUILT-INNOCENCE CHARGE
In his first issue, Richard complains of the court's failure to sua sponte include an instruction as to extraneous offenses in the guilt-innocence charge. "[A] trial court has [a] sua sponte duty" to instruct the jury "on evidence of extraneous offenses in the guilt-innocence charge when such evidence is admitted." Rodgers v State, 180 S.W.3d 716, 723-24 (Tex.App.-Waco 2005, no pet.). The trial court must so instruct "regardless of whether the defendant requests such an instruction or objects to its omission." Id. at 721. When, as here, an appellant fails to object to the charge at trial, he must show egregious harm to prevail on appeal. See Ngo v. State), 175 S.W.3d 738, 743-44 ( Tex. Crim. App. 2005; see also Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). "Errors that result in egregious harm are those that affect `the very basis of the case,' `deprive the defendant of a valuable right,' or `vitally affect a defensive theory.'" Ngo, 175 S.W.3d at 743 (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996)). "[T]o determine whether the error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine: 1) the entire jury charge; 2) the state of the evidence; 3) the arguments of counsel; and 4) any other relevant information in the record." Id. at 750 n. 48; Almanza, 686 S.W.2d at 171. We consider whether the defendant "was harmed by the improper omission of the instruction, not by the admission of evidence of extraneous offenses." Rodgers, 180 S.W.3d at 724; see Ellison v. State, 86 S.W.3d 226, 228 (Tex.Crim.App. 2002). The court admitted evidence that Richard: (1) exposed K.L. to pornography; (2) locked K.L. in the garage and prevented her from contacting her mother; (3) pulled down K.L.'s pants and underwear; (4) pulled down his daughter's pants and underwear; and (5) engaged in a "physical confrontation" with his ex-wife, Cynthia Barber. This evidence qualifies as extraneous conduct. See Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App. 1996); see also Shea v. State, 167 S.W.3d 98, 104 (Tex.App.-Waco 2005, pet. ref'd). Thus, the court erred by failing to sua sponte include a limiting instruction in the guilt-innocence charge. See Rodgers, 180 S.W.3d at 723-24. Arguing that the court's omission caused him to suffer egregious harm, Richard complains that the State mentioned the extraneous offenses during closing arguments. Because the jury convicted him of the lesser offense of indecency with a child, Richard also contends that the jury must have doubted K.L.'s credibility, but was swayed by the extraneous offenses to believe that he is a "bad person generally." However, the State's closing argument made little mention of any extraneous offenses and it is unlikely that the jury was swayed by such evidence. The record indicates that K.L. gave conflicting accounts of whether Richard touched or penetrated her. Having convicted Richard of indecency with a child, as opposed to aggravated sexual assault, the jury clearly chose to disbelieve K.L's trial testimony alleging penetration. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997); see also Perez v. State, 113 S.W.3d 819, 838 (Tex.App. — Austin 2003, pet. ref'd). This does not imply that evidence of extraneous offenses led the jury to find Richard guilty of indecency with a child. Rather, even without the extraneous offense evidence, the jury could have convicted Richard based solely on K.L.'s uncorroborated testimony that Richard touched her. See Perez, 113 S.W.3d at 838. Furthermore, Richard admitted into evidence Dr. George Heiken's evaluation which included information that Richard exposed K.L. to sexually explicit material. See Rodgers, 180 S.W.3d at 725. Richard agreed to admission of K.L.'s Child Advocacy interview, in which K.L. described instances where Richard exposed her to pornography and pulled down his daughter and K.L.'s underwear. He opened the door to evidence regarding his altercation with Barber by eliciting her testimony that Richard does not have a criminal record or an anger problem. See Cruz v. State, No. 04-05-00383-CR, 2006 Tex. App. Lexis 8088, at *3 (Tex.App. — San Antonio Sept. 13, 2006, no pet.) (not designated for publication); see also Houston v. State, 208 S.W.3d 585, 591 (Tex.App.-Austin 2006, no pet.). The State then questioned Barber about the confrontation. Accordingly, Richard contributed to the admission of at least some of the extraneous offenses of which he complains. There is also no mention in the charge of any burden of proof other than reasonable doubt. See McClenton v. State, 167 S.W.3d 86, 98 (Tex.App.-Waco 2005, no pet.); see also McCormick v. State, No. 10-05-00325-CR, 2007 Tex. App. Lexis 183, at *10-11 (Tex. App — Waco Jan. 10, 2007, no pet.) (not designated for publication). As to both aggravated sexual assault and the lesser offense of indecency with a child, the court's application paragraph instructed the jury to acquit Richard unless it found him guilty beyond a reasonable doubt. The court further instructed that the State bears the burden of proving every element of the charged offense beyond a reasonable doubt. In summary, we cannot say that the court's failure to sua sponte include a limiting instruction in the charge caused Richard to suffer egregious harm. See Ngo, 175 S.W.3d at 743-44; see also Almanza, 686 S.W.2d at 171; Rodgers, 180 S.W.3d at 724; Ellison, 86 S.W.3d at 228. We overrule his first issue. THE PUNISHMENT CHARGE
Richard's second issue challenges the court's failure to sua sponte include an instruction as to extraneous offenses in the punishment charge. A reasonable doubt instruction as to extraneous offenses must be included "in the punishment charge regardless of whether the defendant requests it or objects to its omission." Rodgers, 180 S.W.3d at 720; see Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000). Richard complains of the same extraneous evidence admitted during guilt-innocence. Thus, the court erred by not sua sponte including a reasonable doubt instruction as to this evidence in the punishment charge. See Rodgers, 180 S.W.3d at 725; see also Huizar, 12 S.W.3d at 484. The court's punishment charge instructed the jury that it "may take into consideration all the evidence admitted by the Court in this case." Richard argues that this instruction was an "aggravating factor" and "instructs the jury to consider evidence that it may or may not have believed beyond a reasonable doubt." He also complains that his sentence is high in light of the fact that he has no prior criminal record, the State's evidence was weak, he was eligible for probation, and the jury convicted on a lesser included offense. Richard testified at the punishment phase of trial. He admitted to the confrontation with Barber. See Moore v. State, 165 S.W.3d 118, 126 (Tex.App.-Fort Worth 2005, no pet.). He denied committing the other extraneous conduct. The State made little mention of the extraneous offenses during closing argument. See Allen v. State, 47 S.W.3d 47, 52 (Tex.App.-Fort Worth 2001, pet. ref'd). Even had the court's charge contained a reasonable doubt instruction, the record does not indicate that the jury would have "disregarded or discounted the extraneous offense[s]" and assessed a lighter sentence. Escovedo v. State, 902 S.W.2d 109, 115 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). The jury could have sentenced Richard based solely on K.L.'s testimony describing the offense without reference to the extraneous evidence. See Perez, 113 S.W.3d at 838; see also Rachell v. State, No. 14-05-00122-CR, 2006 Tex. App. Lexis 3264, at *19-20 (Tex.App.-Houston [14th Dist.] April 13, 2006, pet ref'd) (not designated for publication). Moreover, the jury assessed punishment at fifteen years, despite the State's request that Richard be sentenced to the maximum of twenty years. See Jones v. State, 111 S.W.3d 600, 610 (Tex.App.-Dallas 2003, pet. ref'd); see also Rodgers, 180 S.W.3d at 725; Tabor v. State, 88 S.W.3d 783, 789 (Tex.App.-Tyler 2002, no pet.). Therefore, we cannot say that the court's failure to include a reasonable doubt instruction in the punishment charge denied Richard a fair and impartial trial. See Almanza, 686 S.W.2d at 171. Because Richard suffered no egregious harm as a result of the court's omission, we overrule his second issue. See Rodgers, 180 S.W.3d at 725-26. The judgment is affirmed. Affirmed