Opinion
No. 05-04-00004-CR
Opinion Filed November 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-15013-KQ. Affirm.
Before Justices WRIGHT, RICHTER, and MAZZANT.
OPINION
Derrick Wayne Harper appeals his conviction for sexual assault. After the jury found appellant guilty, it assessed punishment at 15 years' confinement. In two issues, appellant contends (1) the evidence is factually insufficient to support his conviction; and (2) the trial court erred by failing to instruct the jury regarding extraneous offense evidence during punishment. We overrule appellant's issues and affirm the trial court's judgment. In his first issue, appellant contends the evidence is factually insufficient to support his conviction. In particular, appellant argues that the "testimony established that the complainant consented to the sexual intercourse." We disagree. When reviewing the factual sufficiency of the evidence, we must determine whether a neutral review of the evidence demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence may be factually insufficient when: (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough so that the beyond-a-reasonable-doubt standard could not have been met. See id. In this case, C.H. testified that late one evening, appellant came to her apartment looking for her boyfriend. Appellant told C.H. that he had misplaced appellant's pager number and needed to get it from her again. C.H. went into the kitchen to write the pager number for appellant. As she did so, she heard appellant lock the front door to the apartment. When she told appellant he did not need to lock the door, he said, "I'm coming to get what I want." He then grabbed her arms, threw her onto the couch, and pulled down her sweat pants and underwear. He then "shoved" his penis into her vagina and ejaculated. Appellant then "got up and took off." C.H. went next door and used the telephone to call the police. A short time later, she went to the hospital and had a rape examination. The doctor who performed the examination testified that C.H. had bruising on her forearms and had spermatozoa in her vagina. Appellant claimed that he came to C.H.'s apartment at her request to discuss her relationship with her boyfriend. Appellant admitted that he and C.H. had sexual intercourse. However, according to appellant, they had consensual sex and he did not ejaculate. Appellant explained that he and C.H. had sex twice, once on the night in question in this case and also on the day before. Faced with conflicting evidence in this case, the jury chose to believe C.H. and disbelieve appellant. In making this determination, the jury not only had C.H.'s testimony but also the doctor's testimony about bruising and the presence of sperm from which they could gauge appellant's credibility. After reviewing the entire record, we cannot conclude that the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or that contrary evidence exists that is strong enough so that the beyond-a-reasonable-doubt standard could not have been met. We overrule appellant's first issue. In his second issue, appellant contends he was egregiously harmed by the trial court's failure to instruct the jury that before it could consider any extraneous offense evidence, it must first find the State had proved those acts beyond a reasonable doubt. We disagree. In the punishment phase, a trial court is required to instruct a jury sua sponte that it may not consider unadjudicated extraneous offense and bad acts evidence unless it finds the extraneous offenses have been proven beyond a reasonable doubt. Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App. 2004); Huizar v. State, 12 S.W.3d 479, 484-85 (Tex.Crim.App. 2000). Therefore, in this case, the trial court erred in not giving the instruction. However, because appellant did not object to the charge, we reverse only if appellant suffered egregious harm from the omission of the instruction. Ellison v. State, 86 S.W.3d 226, 228 (Tex.Crim.App. 2002); see also Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). Specifically, we reverse only if the error was so harmful that appellant was denied a fair and impartial trial. Tear v. State, 74 S.W.3d 555, 562 (Tex.App.-Dallas 2002, pet. ref'd), cert. denied, 538 U.S. 963 (2003). Egregious harm consists of errors affecting the case's foundation, or errors denying the defendant a valuable right, significantly affecting a defensive theory, or making the case for guilt clearly and substantially more compelling. Id. In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information from the record. Id. Here, the State elicited testimony that appellant had violated the provisions of the sex offender registration law. On cross-examination, appellant admitted that he was a sex offender and that when he went to the police station to report for his sex offender registration, he intended to lie to the police about his current address because he was "nervous and scared." The State also introduced, without objection, records of a juvenile adjudication for aggravated sexual assault of a child. The jury could properly consider appellant's prior delinquent record without a reasonable doubt instruction. See Bluitt, 137 S.W.3d at 54 (only types of evidence under 37.07, § 3 for which a burden of proof are assigned are unadjudicated offenses and bad acts). The jury assessed punishment at 15 years' confinement, well within the punishment range of 5 to 20 years. The punishment assessed was clearly warranted by the facts of the offense and appellant's prior history. After reviewing the record as a whole, we cannot conclude the error was so harmful that appellant was denied a fair and impartial trial. We overrule appellant's second issue.