Shelby Wayne Dunlap v. The State of Texas--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00360-CR

Shelby Wayne Dunlap,

Appellant

v.

The State of Texas,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court No. F7756

MEMORANDUM Opinion

This Court was notified after the issuance of its opinion and judgment that Dunlap s appointed counsel had died. Accordingly, to avoid prejudicing Dunlap s rights by not being represented by counsel during a critical time period, the opinion and judgment in this case, dated August 3, 2005, were withdrawn, and the submission of this case was set aside. The case was also abated to the trial court for appointment of new appellate counsel for Dunlap which occurred on August 15, 2005. We now reissue our previous opinion.

Dunlap appeals his convictions for indecency with a child. See Tex. Penal Code Ann. 21.11(a) (Vernon 2003). We affirm.

In Dunlap s first issue, he contends that the trial court erred in overruling Dunlap s objection to the admission of the video-recorded statement of the victim. Dunlap argues that the recording did not comply with the requirements of Texas Code of Criminal Procedure Article 38.072 for outcry statements. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). In order to preserve a complaint for appellate review, an appellant must make a timely and specific complaint at trial. Tex. R. App. P. 33.1(a). A complaint on appeal that does not comport with the complaint made at trial presents nothing for appellate review. See Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 1032 (2004). Dunlap s only trial objection to which he points, namely improper predicate, does not comport with his Article 38.072 complaint on appeal. We overrule Dunlap s first issue.

In Dunlap s second issue, he contends that the trial court erred in overruling Dunlap s objection to evidence of Dunlap s extraneous bad acts in the penalty phase. See Tex. Code Crim. Proc. Ann. art. 37.07, 3 (Vernon Supp. 2004-2005); Tex. R. Evid. 404(a). Dunlap argues that his convictions for those acts were set aside, and thus that evidence of those acts was inadmissible. The trial court s ruling on the admission of evidence is reviewed on an abuse-of-discretion standard, and the trial court abuses its discretion only if its ruling lies outside the zone of reasonable disagreement. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005); Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1991) (op. on reh g). Unadjudicated offenses are broadly admissible in the penalty phase of noncapital trials. See Tex. Code Crim. Proc. Ann. art. 37.07, 3; Najar v. State, 74 S.W.3d 82, 88-89 (Tex. App. Waco 2002, pet. dism d). The trial court did not abuse its discretion. We overrule Dunlap s second issue.

Having overruled Dunlap s issues, we affirm the convictions.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurring with note)*

Affirmed

Opinion delivered and filed September 28, 2005

Do not publish

[CRPM]

* (Justice Vance concurs. The perfunctory manner in which this opinion disposes of the issues does not assist the litigants, the higher courts, the Bench and Bar, or the public. There is essentially no analysis of the issues under the applicable standards only conclusions. It is worthy to note that the State utilizes a dozen or so pages discussing the merits of the first issue and why the error, if any, was harmless. The second issue involves a novel question. As posed by the State, the question is: can the trial court rely on an earlier finding of guilt to an extraneous offense, later set aside, to make the threshold determination required by art. 37.07 3(a)? By totally ignoring this question, the opinion suggests that we have not given the issues our careful attention. I believe we should provide more of the facts and our analysis, even in memorandum opinions. Thus, I cannot join this opinion.)