Julio Cesar Soto-Galvan v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 25, 2023
• Docket: 05-21-00467-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed July 25, 2023

In the Court of Appeals Fifth District of Texas at Dallas No. 05-21-00467-CR

JULIO CESAR SOTO-GALVAN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 354th District Court Hunt County, Texas Trial Court Cause No. 32930CR

MEMORANDUM OPINION Before Justices Molberg, Carlyle, and Smith Opinion by Justice Carlyle Appellant complains the trial court erred by including extraneous act

instructions in the jury charges during both phases of this sexual assault of a child

case. See TEX. CODE CRIM. PROC. arts. 36.14; 37.07, § 3(b). We affirm in this

memorandum opinion. See TEX. R. APP. P. 47.4.

Our first duty in analyzing a jury-charge issue is to decide whether error exists.

Ngo v. State, 175 S.W.3d 739, 743 (Tex. Crim. App. 2005) (en banc). Regarding the

charge at the guilt phase, the State gave appellant pretrial notice that it would

introduce evidence from the date of the offense regarding “marijuana/drug use and distribution” at trial. See TEX. R. EVID. 404(b)(2). The complaining witness testified

at trial that appellant admitted possessing marijuana during the party where they met

when he initiated contact with her late in the evening of the night of the party. She

also testified appellant asked her whether he had given his weed to her while at the

party, and said “we had known that he was a drug addict.” Appellant did not object,

nor did he request a limiting instruction at the time the evidence came in, and thus

the trial court was not obligated to give the limiting instruction. See TEX. R. EVID.

105; Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007). Appellant does

not now, nor did he at trial, argue that he strategically failed to object or to request

the limiting instruction. See Delgado, 235 S.W.3d at 250. He made no objection to

the jury charge.

The limiting instruction correctly informed jurors of the appropriate use of the

testimony. It did not specifically refer to the marijuana evidence but only generally

to “evidence of extraneous crimes or bad acts other than the one charged in the

indictment in this case.” Trial counsel’s strategy was to concede guilt and focus on

the punishment phase of this trial. We reject the premise of appellant’s argument,

that it was error for the court to include the instruction, because there was evidence

of extraneous offenses or bad acts, and do not consider egregious harm. See Ngo,

175 S.W.3d at 743.

At punishment, the court included a similar instruction regarding extraneous

offenses or bad acts. See TEX. CODE CRIM. PROC. art. 37.07, §§ 3(a)(1), (b).

–2– Appellant admitted during punishment that he had a reputation in his family as a

drug addict and that he was using drugs and alcohol around the time of the offense.

There was evidence of appellant’s multiple rule violations and write-ups while he

was in jail awaiting trial. Counsel lodged no objection to the punishment charge, and

in any event, because there was evidence at punishment of extraneous offenses or

other bad acts, the punishment charge contained no error. See Smith v. State, 577

S.W.3d 548, 550–51 (Tex. Crim. App. 2019).

We affirm the judgment of the trial court.

/Cory L. Carlyle/ 210467f.u05 CORY L. CARLYLE Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b)

–3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JULIO CESAR SOTO-GALVAN, On Appeal from the 354th District Appellant Court, Hunt County, Texas Trial Court Cause No. 32930CR. No. 05-21-00467-CR V. Opinion delivered by Justice Carlyle. Justices Molberg and Smith THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 25th day of July, 2023.

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