Date: 01-06-2017

Case Style:

Case Number: 05-14-01355-CR

Judge: Elizabeth Lang-Miers

Court: In The Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney:

Anne Wetherholt
Faith Johnson  
Lori Ordiway  

Defendant's Attorney:

Riann C. Moore

Description: Appellant’s daughter, T.M., testified that appellant sexually assaulted her when she was
twelve years old and assaulted her numerous times thereafter until she was fifteen years old.
T.M. testified that, when T.M. became an adult, she informed her mother Evelyn that her father
had sexually assaulted her and T.M. and Evelyn confronted appellant. Subsequently, appellant
was indicted for aggravated sexual assault of a child under fourteen years of age. TEX. PENAL
CODE ANN. § 22.021 (West 2016). At trial before a jury, appellant pleaded not guilty. T.M. and
Evelyn1 were among the witnesses who testified for the State and appellant testified in his
defense. The jury found appellant guilty of aggravated sexual assault of a child as charged in the
indictment. After the jury was unable to reach a verdict regarding punishment, the trial court
ordered a mistrial and discharged the jury. The court held a second jury trial concerning
punishment. The second jury assessed punishment at fifteen years’ imprisonment. This appeal
followed.
READING OF TESTIMONY TO THE JURY
In his first issue, appellant argues that the trial court committed reversible error when it
allowed portions of appellant’s testimony to be read to the jury during jury deliberations. During
deliberations concerning appellant’s guilt or innocence, the jury submitted the following note to
the court:
What was L.D.’s [appellant’s] response (in his testimony on the stand) to Evelyn and [T.M.] when they confronted him?

What was L.D.’s response to the therapist when asked about the situation?

The record contains just over a page of excerpted testimony with the judge’s handwritten note
stating: “The proposed testimony is in response to your questions.” The record reflects that
appellant did not raise any objection to the reading of this testimony until he filed this appeal.
Appellant contends that the trial court erred when it had his testimony read to the jury
during deliberations because there was no showing that the jurors disagreed about the testimony.
1 The defense also called Evelyn as a witness.
–3–
He argues that the trial court’s action was an abuse of discretion under code of criminal
procedure article 36.28 and was not harmless beyond a reasonable doubt. See TEX. CODE CRIM.
PROC. ANN. art. 36.28 (West 2006). The State argues that, because appellant did not object to the
reading of the testimony to the jury, appellant has not preserved this complaint for appellate
review. In addition, the State argues that the trial court did not abuse its discretion in having the
testimony read to the jury because the court could “reasonably infer from the jury’s specific
note” that jurors disagreed about the testimony.
Applicable Law and Standard of Review
Article 36.28 of the code of criminal procedure states,
In the trial of a criminal case in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter’s notes that part of such witness testimony or the particular point in dispute, and no other[.]

Id. “It is well established that complaints about error in the reading of trial testimony must be
preserved by objection at the time of the reading.” Hollins v. State, 805 S.W.2d 475, 476 (Tex.
Crim. App. 1991); see Thomas v. State, No. PD-1086-15, 2016 WL 6609750, at *5 (Tex. Crim.
App. Nov. 9, 2016) (“Complaints about error in the reading of trial testimony must be preserved
by objection at the time of the reading.”). In order for a party to complain on appeal, the record
must show that the complaint was made to the trial court by a timely and specific request,
objection, or motion. TEX. R. APP. P. 33.1(a).
Analysis
The record does not contain any objection by appellant to the reading of the testimony to
the jury. Because “[c]omplaints about error in the reading of trial testimony must be preserved
by objection at the time of the reading[,]” Thomas, 2016 WL 6609750, at *5, we conclude that
appellant did not preserve this complaint for our review.

–4–
LIMITING INSTRUCTION
In his second issue, appellant argues that the trial court’s limiting instruction to the
second jury concerning extraneous offense evidence “imposed an onerous burden on the jury”
and, as a result, this Court should reverse his sentence and remand for a new punishment hearing.
The State argues that the limiting instruction favored appellant and, as a result, appellant suffered
no harm from the limiting instruction.
Applicable Law and Standard of Review
When reviewing complaints of error in the jury charge, we first determine whether there
is error. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, we then
determine whether appellant was harmed by the error. Id. When a party properly objects to the
charge, the test for harm is whether the party suffered “some harm” from the error. Id.; see
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g) (stating there is
“some harm” if the error was calculated to injure the party’s rights). Here, appellant objected to
the limiting instruction concerning extraneous offenses in the jury charge. So, if there was error,
our focus is whether appellant suffered “some harm” to his rights. See Ngo, 175 S.W.3d at 743.
Analysis
The limiting instruction at the punishment phase of the first jury trial (that resulted in a
mistrial) read:
You are instructed that if there is any testimony before you in this case regarding the defendant having committed offenses, if any, other than the offense described in this indictment, if any, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses.

The burden is upon the prosecution to prove such extraneous offenses or bad acts beyond a reasonable doubt. The prosecution does not have to prove extraneous offenses or bad acts beyond all possible doubt. The prosecution’s proof must exclude all “reasonable doubt” concerning the extraneous crime or bad act.

–5–
Therefore, if you find and believe beyond a reasonable doubt that the defendant committed an extraneous offense or bad act then you may consider such evidence in assessing the defendant’[s] punishment. If you do not so find, or if you have a reasonable doubt as to whether the defendant committed an extraneous offense or bad act then you may not consider such evidence, if any, for any purpose.

At the second punishment trial, the court submitted the following limiting instruction:
You are instructed that if there is any testimony before you in this case regarding the defendant having committed other crimes, wrongs or bad acts other than the offense, if any, alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider the same for the following purposes: 1) to determine the motive, intent, scheme or design, if any, of the defendant; 2) to determine the state of mind of the defendant; and 3) for its bearing on the previous and subsequent relationship between the defendant and the child.

Consequently, the instruction submitted at the first jury trial was more general than the
one submitted at the second trial. The instruction at the second trial further limited what the jury
could consider to testimony concerning “other crimes, wrongs or bad acts other than the offense”
(1) if the jury found and believed “beyond a reasonable doubt that the defendant committed such
other offenses” and (2) only “for the following purposes:” (a) to determine appellant’s motive,
intent, scheme, or design, (b) to determine appellant’s state of mind, and (c) for the bearing of
the testimony on the previous and subsequent relationship between appellant and the child.
Appellant objected to the extraneous offense limiting instruction in the jury charge at the
second trial and argued that the court should instead submit the same instruction that was
submitted to the jury at his first trial:
I was looking at the previous jury instruction that we had back in April, and in that one, the instruction, as it relates to the extraneous, is different here. The one we have here is limited to motive, intent, scheme and design. And the one previously, it talks about accessing [sic] punishment as it relates to extraneous bad acts.

–6–
So I was wondering why there was a difference with respect to the two paragraphs?

After comments by the judge and the prosecutor, appellant’s counsel continued:

[T]he notice of extraneous is here. There were two actions filed, one on the first day that they’re saying there was an allegation, and on the last day. And they did an extraneous about continuing course during the interim. Testimony was about the interim and last day, so from that standpoint, those would be extraneous. I don’t think it should be limited. It seems like the way you did it the first time, Judge, would be the appropriate paragraph.

The judge overruled appellant’s objection.
Appellant argues that the limiting instruction the court gave at the second trial should
only be given at the guilt/innocence stage of trial. Appellant contends that “one can imagine
several scenarios where the limiting instruction” that “is as burdensome and limiting as it was
written here” would “task the jury” with weighing evidence of extraneous offenses “more
heavily” and “spending additional time and attention considering it and generally deliberating
about it[.]” Appellant argues that, as a result of the limiting instruction, appellant was deprived
of an impartial and fair punishment hearing.
The State acknowledges that normally at the punishment stage the judge would submit
the more general limiting instruction. The State contends that the reason the trial court gave the
less general limiting instruction at the second trial was because the State had to present all of the
evidence, including the complainant’s testimony, concerning the charged offense to the second
jury.
The State contends that, even though appellant objected and desired a more general
instruction regarding extraneous offenses, the less general limiting instruction actually favored
appellant by restricting how the jury could properly consider the evidence and, as a result,
appellant suffered no harm from the instruction. We agree.
–7–
In Fair v. State, 465 S.W.2d 753, 754–55 (Tex. Crim. App. 1971), the defendant argued
that the trial court erred in overruling his objection to a limiting instruction in the charge
concerning extraneous offenses because the extraneous offenses had not been proven. The court
of criminal appeals concluded that it was not necessary to give the limiting instruction because
the evidence was admissible to prove the main issues of intent and motive. Id. at 455. But the
court also concluded that “[t]he charge given was not harmful but beneficial to the appellant”
and there was no reversible error. Id. Additionally, in Jasso v. State, 699 S.W.2d 658, 662 (Tex.
App.—San Antonio 1985, no pet.), the defendant charged with rape of a child argued that the
trial court erred in giving a limiting instruction concerning an extraneous offense. The court
concluded,
Appellant has cited no case and we have found none that holds that the giving of an instruction favorable to the accused, such as a limiting instruction on the use of extraneous offenses constitutes reversible error. We believe there can be none because a benefit to the accused cannot be the basis for complaint.

Id. Here, as in Fair and Jasso, the limiting instruction regarding extraneous offenses at the
second punishment trial “was not harmful but beneficial to the appellant.” Fair, 465 S.W.2d at
455. As a result, and regardless of whether there was error, we conclude there was no reversible
error.
We resolve issue two against appellant.

Outcome: