Ausencio Martinez v. The State of Texas--Appeal from 292nd District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-99-295-CR

AUSENCIO MARTINEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 292nd District Court

Dallas County, Texas

Trial Court # F98-68260-V

O P I N I O N

Appellant Martinez appeals from his conviction for Indecency with a Child, for which he was sentenced to 20 years in the Texas Department of Criminal Justice-Institutional Division.

Appellant asserts in one point of error:

The trial court erred in admitting into evidence an unadjudicated extraneous offense during the punishment hearing, in violation of Article 37.07(3)(A), Tex. Code Crim. Proc.

Trial was to a jury. Angelo Favella testified that when he was six or seven years old, appellant, his step-grandfather, began a pattern of repeated sexual abuse toward him. Other witnesses confirmed Angelo s testimony. The jury found appellant guilty.

To support its plea for a maximum sentence, at punishment phase, the state presented evidence of appellant s extraneous sexual misconduct toward other children in his wife s family. At the hearing on the admissibility of the extraneous misconduct evidence offered by the State, appellant objected under Tex. R. Evid. 403 and 611, claiming the evidence was not probative because it concerned remote prior incidents occurring in 1990 and 1993.

Appellant s point of error states that the admission of the evidence was error under Tex. Code. Crim. Proc. Article 37.07(3)(A) because it concerned an unadjudicated extraneous offense.

Appellant s argument that unadjudicated acts of misconduct are inadmissible at punishment under Article 37.07 does not comport with his trial objections that evidence of remote and prejudicial misconduct involving acts with other children is inadmissible under Tex. R. Evid. 403 and 611.

To preserve error for appellate review, the complaining party must make a timely specific objection at the earliest possible opportunity and obtain an adverse ruling from the trial court. Furthermore, the point of error on appeal must correspond to the objection made at trial. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).

Appellant has not preserved error. Moreover, Article 37.07(3)(A) provides that in the punishment phase evidence may be offered . . . as to any matter the court deems relevant to sentencing, including but not limited to the prior record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried and . . . any other evidence of an extraneous crime or bad act that it shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could have been held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act . . . .

Appellant s complaint concerns the testimony of his sixteen year old step-granddaughter Erica Favella. She testified that appellant directed sexual misconduct towards her when she was six or seven years old. She testified that appellant kissed her on her neck towards my chest. As appellant was doing this, Erica s mother came into the room and angrily confronted appellant for his actions. For more than a year after this, Erica was not allowed to return to her grandmother s home.

The evidence was admissible under Article 37.07(3)(A) wherein it states, that any other evidence of an extraneous crime or bad act that is proven beyond a reasonable doubt to have been committed by the defendant . . . regardless of whether he has been previously charged with or finally convicted of the crime or act.

Appellant has not only failed to preserve his complaint for review, but the evidence complained of was admissible.

Appellant s point is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Vance,

Justice Gray, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed May 24, 2000

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