JUSTIN CLEMENTE KAERCHER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion filed August 25, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00392-CR
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JUSTIN CLEMENTE KAERCHER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 2-06-81
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OPINION
Before Justices Moseley, Francis, and Lang
Opinion By Justice Moseley
        A jury convicted Justin Clemente Kaercher of the sexual assault of a child and assessed punishment at eleven years' confinement. See Tex. Penal Code Ann. § 22.011(a)(2)(B) (Vernon Supp. 2008). In a single issue, appellant contends the trial court erred by failing to instruct the jury at punishment that it could consider the State's offer of evidence of extraneous offenses only if it believed beyond a reasonable doubt that appellant committed those offenses. We affirm.
I. BACKGROUND
        Appellant was convicted of the sexual assault of C.H. on September 30, 2005, by penetrating C.H.'s mouth with appellant's sexual organ. At the time C.H. was fifteen years old. The evidence at the guilt/innocence phase established that appellant was a twenty-one-year-old serviceman when he and C.H., age fourteen, met on the internet in the summer of 2005. They exchanged e-mails. On September 30, 2005, they went to a hotel in Rockwall and engaged in kissing, oral sex, and masturbation. C.H.'s written statement to Rockwall police officers describing this sexual contact was introduced into evidence without objection. Appellant's videotaped statement taken by Rockwall police was also admitted without objection and played for the jury. In this statement, appellant admitted the charged offense and also admitted placing his mouth on C.H.'s sexual organ.
        At the punishment phase, a police officer testified that in February 2006, he saw appellant and C.H. at midnight, in a public park, talking. He observed no illegal activity taking place but told the two to leave the park because it was closed. Appellant told the jury everything in his videotaped statement to police was correct, admitted the internet contact, and apologized for what he had done. He admitted having met C.H. in the park in February 2006. Appellant also admitted he lied to military investigators about his relationship with C.H., testified to the nature of his discharge from the army, and said he knew his homosexuality conflicted with army rules.
II. APPLICABLE LAW AND STANDARD OF REVIEW
        Texas Code of Criminal Procedure article 37.07, section 3(a)(1) governs the admissibility of punishment phase extraneous offense and bad acts evidence and provides in relevant part:
 
[E]vidence may be offered . . . as to any matter the court deems relevant to sentencing, including . . . evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
 
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2008). This section “logically require[s]” submission of a jury instruction requiring that the fact-finder be satisfied beyond a reasonable doubt that such offenses are attributable to the defendant. See Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000) (op. on reh'g); Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999). Once the fact-finder is satisfied beyond a reasonable doubt that such offenses are attributable to the defendant, the fact-finder may use the extraneous offense or bad acts evidence however it chooses in assessing punishment. Huizar, 12 S.W.3d at 484. The trial court is required, when punishment phase evidence of extraneous offenses or bad acts evidence is admitted, to sua sponte instruct the jury on the reasonable doubt standard. Id. at 483-84. The trial court did not submit such an instruction, and trial counsel did not object to its absence. Although some of the acts appellant addresses were offered at guilt/innocence and some at punishment, article 37.07, section 3(a)(1) requires that jurors be instructed not to consider such extraneous offense or bad acts in assessing punishment unless they find him culpable for such offenses or acts under the reasonable doubt standard. See Allen v. State, 47 S.W.3d 47, 50 (Tex. App.-Fort Worth 2001, pet. ref'd).
        When trial counsel fails to object to the omission of this instruction in the jury charge, we review such error under the egregious-harm standard. Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002). Accordingly, we must decide whether the error created such harm that the appellant did not have a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). In making this determination, we “attempt to illuminate the actual, not just the theoretical harm to appellant.” Ellison, 86 S.W.3d at 227. We must assess the degree of harm in light of the entire jury charge, the state of the evidence, including contested issues and the weight of the probative evidence, the argument of counsel, and all other relevant information revealed by the record as a whole. Id.
III. DISCUSSION
        Appellant directs our attention to uncharged acts described in C.H.'s written statement that occurred just before and during the September 30, 2005 encounter: purchasing sexual items on the way to the motel; placing appellant's mouth on C.H.'s sexual organ; and masturbating. In addition, appellant points to “love” e-mails from appellant to C.H. in July and August 2005, when appellant knew C.H. was then fourteen years old. Both the written statement and evidence concerning the e- mails were presented during the guilt/innocence phase of the trial.
        Appellant also directs our attention to the following evidence offered at the punishment phase:
 
A Heath, Texas police officer testified that, on February 5, 2006, he saw appellant and C.H. in a car in a public park, at about midnight, talking. The officer testified there was no illegal activity occurring, but he told them to “move on because the park is closed.”
 
 
 
Appellant testified he lied to military investigators about his relationship with C.H. in October and November 2006.
 
 
 
Appellant testified he received a “general under honorable conditions discharge” from the army.
Appellant testified he joined the army knowing his homosexuality conflicted with army “rules.”
 
        We assume without deciding that this conduct is subject to the reasonable doubt instruction requirement of article 37.07, section 3(a)(1). Therefore, the jury should have been instructed it could not consider the above listed extraneous offenses and bad acts complained of by appellant unless the jury was satisfied beyond a reasonable doubt that such offenses were attributable to appellant. Our assessment of whether the failure to so instruct the jury was so egregious and created such harm that appellant did not receive a fair and impartial trial need go no further than the appellant's own testimony at punishment.
        During his testimony, appellant admitted the internet and e-mail communication with C.H. and agreed that he knew C.H. was fourteen when the e-mails began. Appellant told the jury that he engaged in the sexual contact with C.H. as depicted in his video interview with Rockwall police. He admitted he put his penis in C.H.'s mouth and C.H. put his penis in appellant's mouth. He told the jury he was sorry “for what happened in the Big 8 Motel here in Rockwall.” He admitted being in the park with C.H. and told the jury he lied to military investigators about his relationship with C.H. Appellant provided testimony about the nature of his discharge from the army and that he knew his homosexuality was “conflicting” with military policy. He did not deny that any of the sexual contact offered by the State occurred.
         Because appellant testified to the extraneous offense and bad act evidence now addressed on appeal, there can be no doubt as to his connection to these offenses and acts. See Moore v. State, 165 S.W.3d 118, 126 (Tex. App.-Fort Worth 2005, no pet.). The evidence being undisputed, we conclude the error had little or no effect. See Martin v. State, 42 S.W.3d 196, 201 (Tex. App.-Fort Worth 2001, pet. ref'd) (concluding that omission of reasonable doubt instruction was not harmful because there could be little doubt as to defendant's connection with bad acts to which he voluntarily admitted at guilt/innocence).         Further, the jury assessed punishment far below the twenty-year maximum punishment available. See Batiste v. State, 73 S.W.3d 402, 408 (Tex. App.-Dallas 2002, no pet.) (concluding appellant did not show egregious harm by failure to give reasonable doubt instruction when jury assessed punishment far below maximum punishment available). See also Tex. Penal Code Ann. § 12.33 (Vernon 2003) (second-degree felony punishment is imprisonment of any term of not more that twenty years or less than two years and fine not to exceed $10,000). We conclude no egregious harm resulted from any error in omitting a reasonable-doubt instruction concerning the evidence admitted during the punishment phase.
        Accordingly, we conclude the trial court's failure to instruct the jury on reasonable doubt as to any evidence of extraneous offenses and bad acts presented during the punishment phase did not deprive appellant of a fair and impartial trial. See Ellison, 86 S.W.3d at 228; Almanza, 686 S.W.2d
at 171. We resolve appellant's single issue against him and affirm the trial court's judgment.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070395f.u05