Andrew James Garibay v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 22, 2024
• Docket: 02-24-00009-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-24-00009-CR ___________________________

ANDREW JAMES GARIBAY, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 90th District Court Young County, Texas Trial Court No. CR11982

Before Sudderth, C.J.; Wallach and Walker, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION

A jury found Appellant Andrew James Garibay guilty of continuous sexual

abuse of a child under fourteen years of age and assessed his punishment at 70 years’

imprisonment. See Tex. Penal Code Ann. § 21.02(b). The trial court sentenced Garibay

in accordance with the verdict.

On appeal, in one issue, Garibay contends that the trial court abused its

discretion during the punishment trial when it admitted evidence of extraneous

offenses or bad acts. Because Garibay did not object to the complained-of testimony,

he has not preserved error. See Tex. R. App. P. 33.1. Assuming he had preserved

error, his complaint has no merit. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1).

We overrule his issue and affirm the trial court’s judgment.

I. BACKGROUND

• Offense Trial

During the offense trial (sometimes imprecisely referred to as the guilt–

innocence trial), outside the jury’s presence, the State proffered the testimony of two

witnesses who asserted that Garibay had sexually assaulted them when they were

adults. See id. art. 38.37. Objecting to the admission of their testimony, Garibay argued

that the probative value of the proposed testimony was substantially outweighed by

the danger of unfair prejudice. See Tex. R. Evid. 403. After hearing the two witnesses’

testimony and the parties’ arguments, the trial court took the matter under

2 advisement. Ultimately, the proffered testimony never came in during the offense

trial.

• Punishment Trial

During the punishment trial, both witnesses testified about how Garibay had

sexually assaulted them as adults. Garibay did not object to their testimony during the

punishment trial.

II. DISCUSSION

On appeal, Garibay asserts that his Rule 403 objection during the offense trial

preserved his complaint about evidence admitted during the punishment trial. See id.

Garibay has not cited any authority for the proposition that an objection raised during

the offense trial can be transposed into the trial on punishment.

• Not Preserved

The basis for admitting an extraneous offense during the offense trial, see Tex.

Code Crim. Proc. Ann. art. 38.37, is different from the basis for admitting an

extraneous offense during the punishment trial, see id. art. 37.07, § 3(a)(1). During the

punishment trial, Garibay never argued that the probative value of the extraneous

offenses or bad acts was substantially outweighed by the danger of unfair prejudice.

The purpose of an objection is to give opposing counsel an opportunity to respond

and to give the trial court an opportunity to rule. Null v. State, 690 S.W.3d 305,

318 (Tex. Crim. App. 2024). Neither opposing counsel nor the trial court had that

3 opportunity here. We hold that Garibay has not preserved his complaint. See Tex. R.

App. P. 33.1; Chauncey v. State, No. 14-13-00950-CR, 2015 WL 3982858, at *7 (Tex.

App.—Houston [14th Dist.] June 30, 2015, pet. ref’d) (mem. op., not designated for

publication).

• Assuming Error Preserved

Assuming Garibay had preserved error, his complaint has no merit. Under

Section 3(a)(1) of Article 37.07, during the punishment trial, any matter the trial court

deems relevant to sentencing may be offered into evidence. See Tex. Code Crim. Proc.

Ann. art. 37.07, § 3(a)(1); Beham v. State, 559 S.W.3d 474, 478–79 (Tex. Crim. App.

2018). To allow juries to tailor appropriate punishments, the legislature has expressly

permitted evidence of unadjudicated extraneous crimes and bad acts. Sanders v. State,

422 S.W.3d 809, 815 (Tex. App.—Fort Worth 2014, pet. ref’d) (citing Tex. Code

Crim. Proc. Ann. art. 37.07, § 3(a)(1)). Relevance in the context of a punishment trial

is not the same as relevance in the context of an offense trial. See Fowler v. State,

126 S.W.3d 307, 311 (Tex. App.—Beaumont 2004, no pet.) (referring to Tex. R. Evid

401). While we agree that the extraneous offenses and bad acts were prejudicial, in the

context of a punishment trial, we disagree that they were unfairly prejudicial. See Cohn

v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993); Gomez v. State, No. 02-17-00089-

CR, 2018 WL 547626, at 2 n.3 (Tex. App.—Fort Worth Jan. 25, 2018, no pet.) (mem.

op., not designated for publication). Accordingly, assuming Garibay had preserved his

4 Rule 403 objection, the trial court did not abuse its discretion by overruling Garibay’s

objection. See Fowler, 126 S.W.3d at 311.

III. CONCLUSION

We overrule Garibay’s sole issue and affirm the trial court’s judgment.

/s/ Mike Wallach Mike Wallach Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: August 22, 2024