Paul Joseph Bennett v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-92-023-CR

PAUL JOSEPH BENNETT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 28452

O P I N I O N

Paul Bennett appeals his conviction for aggravated sexual assault // and four counts of indecency with a child. // He was found guilty by a jury, and the court assessed a life sentence for the aggravated sexual assault conviction and four concurrent twenty-year sentences on the separate counts of indecency with a child.

In point one, Bennett contends that the court erred in failing to submit his requested jury charges on homosexual conduct, // public lewdness, // and indecent exposure // or his requested instruction on lesser included offenses. A charge on a lesser-included offense must be submitted if two requirements are met: first, the lesser-included offense must be included within the proof necessary to establish the offense charged; and, second, there must be some evidence in the record that, if Bennett is guilty, he is guilty only of the lesser offenses. // Bennett does not point to any evidence that, if he is guilty, he is guilty only of the lesser offenses. As a result, without determining whether the elements of the requested offenses are within the proof necessary to establish the offense charged, we overrule point of error one.

In point three, Bennett contends that the court erred in granting the State's motion for continuance. Following several pretrial hearings, Bennett's case was scheduled to be tried before a jury on November 4, 1991. When the case was called for trial, the State made the following oral motion:

Your Honor, The State is coming now and moving for continuance in this cause due to the fact the first count in the indictment has alleged a second degree felony, when the facts are going to show a first degree felony, that the child was under the age of 14 years. This case needs to be reindicted and we move for continuance this morning.

Bennett's attorney objected that the defense was ready for trial, that the defense witnesses were ready, that defense counsel had a motel room for the week, and that a continuance would be "extremely inconvenient." He requested that the court proceed with the trial as originally indicted, but the court granted the State's motion. Bennett now argues on appeal that the continuance was improper because the State's oral, unsworn motion violated article 29.03 and article 29.08 of the Texas Code of Criminal Procedure. // A point of error presented on appeal must be the same as the objection raised at trial. // Because Bennett's objection at trial differs from his point of error on appeal, we overrule point of error three.

In point two, Bennett contends that the court erred in proceeding to trial over his objection that the State failed to notify defense counsel of the new indictment. The case was scheduled for trial under the new indictment on January 13, 1992. On January 9, 1992, the parties appeared before the court and Bennett's attorney announced ready for trial under the new cause number. At a pretrial hearing on the day of trial, however, Bennett moved the court to quash the second indictment that was returned by the grand jury on November 14, 1991. Bennett's attorney complained that he had not received a copy of the second indictment and that one had not been delivered to his office. After referring to the case file, however, the court determined that Bennett was personally served with a copy of the new indictment on December 11, 1991. // The prosecutor informed the court that the District attorney's office had an open-file policy and that she had spoken with the defense attorney about the new indictment on three prior occasions. Bennett then acknowledged that he was aware that a change had been made in the indictment. He argued, however, that he was entitled to a copy because, at the arraignment hearing, the trial court ordered that a copy of the new indictment be delivered to him.

Finding that Bennett had been personally served on December 11, 1991, and the indictment had been a public record since November 14, 1991, the court overruled Bennett's motion to quash. The personal service of the new indictment complied with article 25.01 of the Texas Code of Criminal Procedure and Bennett's attorney had actual knowledge of the new indictment. As a result, Bennett had sufficient notice of the new indictment prior to trial. // Furthermore, we determine beyond a reasonable doubt that, if any error resulted from the prosecutor's failure to serve defense counsel with a copy of the new indictment, the error made no contribution to Bennett's conviction or punishment. // We overrule point of error two.

In point four, Bennett complains that the court erred during the punishment phase by overruling his objection to the testimony of the victim in another charge of indecency with a child pending against Bennett in Tarrant County. The court overruled his objection and stated, "The Court will exclude anything that's not proper." In Blackwell v. State, // this court held that extraneous unadjudicated offenses were inadmissible in non-capital trials. In this case, however, the punishment phase was tried before the court, and it is presumed that the court disregarded any inadmissible evidence admitted at trial. // As a result, Bennett carries the burden of proving that the trial court relied upon or even considered the inadmissible evidence in determining punishment. // When there is nothing to show that the judgment was based upon inadmissible evidence, the judgment will not be reversed on the ground of the admission of incompetent evidence if sufficient proper evidence was admitted to sustain the judgment. // In this case the prosecutor re-offered all of the evidence that was introduced during the guilt-innocence phase of the trial, which included testimony from the four boys abused by Bennett. Furthermore, the trial judge stated on the record that he had not taken into account the cases that were pending in Tarrant County or that were extraneous to the offenses charged in this case. Because Bennett has failed to overcome the presumption that the evidence of extraneous unadjudicated offenses were not considered by the court, we overrule point of error four.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed October 30, 1992

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