Patrick Joseph Sullivan v. The State of Texas--Appeal from 25th Judicial District Court of Guadalupe County

No. 04-97-00859-CR
Patrick Joseph SULLIVAN,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 96-0860-CR
Honorable Gus J. Strauss, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: September 30, 1998

AFFIRMED

The trial court accepted Patrick Sullivan's open plea of guilt to the offense of murder and sentenced him to 35 years confinement. On appeal, Sullivan complains the trial court erred by failing to make specific findings about unadjudicated extraneous offenses that were admitted during the punishment phase of his bench trial. Finding no error, we affirm.

Background

Sullivan admitted that he shot and killed his ex-wife's husband. During the punishment phase of Sullivan's trial, his ex-wife testified that Sullivan physically abused her during their marriage and that she stopped living with him when she caught him sexually abusing one of their daughters. One of the daughters, who said Sullivan sexually abused her, corroborated this testimony. The daughter also testified that Sullivan sexually abused her own child, Sullivan's granddaughter. Finally, Sullivan's stepdaughter testified that Sullivan had sexually abused her.

In each instance, Sullivan objected based on relevancy, and the trial court overruled the objection. At the close of the evidence, the trial court stated on the record that the allegation about Sullivan's granddaughter had not been proven beyond a reasonable doubt. The court made no other specific findings about the unadjudicated extraneous offenses.

Discussion

On appeal, Sullivan does not contest whether the unadjudicated extraneous offenses were relevant or whether they were proven beyond a reasonable doubt. Instead, Sullivan contends the trial court erred because it made no specific findings about relevancy or the burden of proof, except for the one allegation about his granddaughter. Unlike other attacks on the application of article 37.07 of the Code of Criminal Procedure, Sullivan's complaint raises a question of law that we review de novo. Cf. Ford v. State, 919 S.W.2d 107, 115 (Tex. Crim. App.1996); State v. Burckhardt, 952 S.W.2d 100, 101 (Tex. App.--San Antonio 1997, no pet.).

Before extraneous offenses can be considered in the punishment phase of trial, they must be relevant and proven beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art. 37.07, 3(a) (Vernon 1997). The trial court determines the threshold issue of relevancy and admissibility. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). When a jury assesses punishment, it determines whether or not the extraneous offenses were proven beyond a reasonable doubt. Id.; see also Huizar v. State, No. 04-96-00837-CR, slip op. at 11,1997 WL 121539, at *7 (Tex. App.--San Antonio, March 18, 1998, pet. filed).

In contrast, when a trial court assesses punishment, the judge makes both determinations regarding relevancy and proof. Williams v. State, 958 S.W.2d 844, 845 (Tex. App.--Houston [14th Dist.] 1997, pet. ref'd). In this situation, the Code of Criminal Procedure does not require the trial court to make specific findings, either oral or written, before sentencing the defendant. Contrast Tex. Code Crim. Proc. Ann. art. 37.07, 3(d) (Vernon 1997) (discussing the judge's discretion to order an investigative report), with id. 3(b) (requiring judge to give the jury instructions).

We cannot say the trial court erred by failing to make specific findings about each of the extraneous offenses challenged by Sullivan, especially when Sullivan did not request any such findings. Accordingly, we affirm the trial court's judgment.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

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