Michael D. Jones v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

Nos. 10-99-052-CR & 10-99-053-CR

MICHAEL D. JONES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court Nos. 15020 and 15021

O P I N I O N

Michael David Jones pleaded guilty before a jury to two counts of aggravated sexual assault of a child. See Tex. Pen. Code Ann. 22.021(a)(1)(B)(i), (iii), (2)(B) (Vernon Supp. 2000). // The jury assessed his punishment at ten years confinement on each count, and the court ordered the sentences to run concurrently. Jones claims in a single issue that the court erred by failing to include the extraneous offense instruction required by article 37.07, section 3(a) of the Code of Criminal Procedure in the charge.

The indictments each allege that Jones committed these offenses between the 1st day of February, 1998 and the 16th day of May, 1998. The prosecutor told the jury at least four times during his opening statement that Jones molested the victim for 2 months. A police detective testified that he interviewed Jones about the allegations during the course of the investigation. After advising Jones of his rights, the detective asked him about the allegations. According to the detective, Jones admitted that he had penetrated the victim s vagina with his finger once or twice. He also admitted that he had licked the victim s vaginal area during a period of between two and two-and-one-half months. The State also offered in evidence Jones s written stipulations and judicial confessions, in each admitting that he had committed the offenses as alleged between the 1st day of February, 1998 and the 16th day of May, 1998.

The court s charge did not contain the extraneous offense instruction which article 37.07, section 3(a) of the Code of Criminal Procedure requires when evidence of extraneous matters is introduced at the punishment phase of trial. See Huizar v. State, 12 S.W.3d 479, 483-84 (Tex. Crim. App. 2000) (op. on reh g); Tex. Code Crim. Proc. Ann. art. 37.07, 3(a) (Vernon Supp. 2000). In closing argument, Jones s counsel reminded the jurors that the indictments alleged only two distinct offenses and argued that this case does not involve a multiple act over that period of two months. The State responded by twice referring to the detective s testimony that Jones had admitted that he had been doing this for 2 months.

In his sole issue, Jones contends that the court erred by failing to include an article 37.07, section 3(a) burden-of-proof instruction in the charge. It is true that the statute requires a trial court to submit a reasonable doubt instruction in the punishment charge when evidence of extraneous offenses has been admitted. See Huizar, 12 S.W.3d at 483-84. However, the State did not offer evidence of any extraneous offenses in Jones s case. See Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997); Ferrell v. State, 968 S.W.2d 471, 473 (Tex. App. Fort Worth 1998, pet. ref d).

The evidence in Jones s case is similar to that introduced in Sledge. There, the indictment alleged that Sledge committed two offenses on or about August 31, 1988. Id. at 254. At Sledge s request, the State filed a pre-trial notice pursuant to former Rule of Criminal Evidence 404(b) listing several instances of sexual abuse. Id. When Sledge asked the State to elect the two offenses for which it intended to seek a conviction, it chose to proceed on two events which the evidence at trial showed to have occurred in 1986 and 1987. Id. at 254-55. Sledge argued that the State was allowed to convict him of two unindicted, extraneous offenses identified as such [by the Rule 404(b) notice]. Id. at 255. The Court rejected this argument concluding that the offenses were not extraneous because they occurred before presentment of the indictment and within the limitations period. Id. at 255-56. The Court also held that the State s Rule 404(b) notice did not change the character of the offenses alleged. Id. at 256.

In Jones s case, the State offered evidence of offenses which occurred before presentment of the indictment and within the time parameters alleged in the indictment. Id. at 255-56; Ferrell, 968 S.W.2d at 473. The State offered no evidence of any crime or bad act extraneous to the allegations of the indictment. See Tex. Code Crim. Proc. Ann. art. 37.07, 3(a); Sledge, 953 S.W.2d at 255-56; Ferrell, 968 S.W.2d at 473. Accordingly, the trial court was not required to submit the reasonable doubt instruction called for by article 37.07, section 3(a). Thus, we overrule Jones s sole issue.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Vance and

Justice Gray

Affirmed

Opinion delivered and filed August 9, 2000

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