Kristopher Keith Kinchloe v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00073-CR

KRISTOPHER KEITH KINCHLOE, Appellant v.

THE STATE OF TEXAS, Appellee

From the 272nd District Court Brazos County, Texas Trial Court No. 08-00590-CRF-272

MEMORANDUM OPINION

Kristopher Keith Kinchloe appeals from his conviction for the offense of Assault

with Bodily Injury/Family Member which was enhanced by a prior conviction for the

same offense. Kinchloe pled not guilty to the offense, but pled true to the enhancement

before the jury. Kinchloe was sentenced to six years in prison by the trial court.

Kinchloe complains that the trial court erred in submitting an improper limiting

instruction regarding his prior conviction that served as the basis of the enhancement

paragraph as an extraneous offense in the jury charge. Because we find no reversible

error, we affirm the judgment of the trial court. Admission of Extraneous Offenses

Kinchloe contends that the evidence regarding his prior conviction was

admissible solely for jurisdictional purposes and could not be considered for any of the

reasons relating to extraneous offenses in Rule 404(b) of the Rules of Evidence. See TEX.

R. EVID. 404(b). To the extent that Kinchloe’s issue can be read to complain that the

evidence was used for any other purpose pursuant to rule 404(b), that objection was

waived by Kinchloe’s failure to request a limiting instruction at the time the evidence

was offered. Because there was no request for a limiting instruction at the time of the

admission of his stipulation regarding the prior conviction that extraneous act evidence

became “part of the general evidence and [could] be used for all purposes.” See Delgado

v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007).

In his brief, Kinchloe also sets forth the balancing test required for determining

admissibility pursuant to Rule 403. See TEX. R. EVID. 403; De La Paz v. State, 279 S.W.3d

336, 348-49 (Tex. Crim. App. 2009). However, that objection was also not made at the

time of the admission of the evidence, but was referenced during the jury charge

conference. As such, any complaint relating to Rule 403 was waived. TEX. R. APP. P.

33.1(a).

Jury Charge Error

Kinchloe complains that the trial court’s limiting instruction that was included in

the charge relating to extraneous offenses was erroneous because it allowed the jury to

consider the prior conviction for purposes other than for establishing felony

jurisdiction, those being the intent of the defendant and rebuttal of a defensive theory.

The instruction of which Kinchloe complains stated:

Kinchloe v. State Page 2 You are instructed that if there is any testimony before you in this case regarding the defendant’s having committed offenses other than the offenses alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may consider the same in determining jurisdiction, the intent of the defendant, and rebuttal of any defensive theory in connection with the offense alleged against him in the indictment in this case, and for no other purpose.

(emphasis added). However, this section by its language expressly does not apply to

the prior conviction because it is limited to other offenses besides those alleged in the

indictment. The prior conviction of which Kinchloe complains was contained in the

indictment, read to the jury as part of the indictment, Kinchloe pled true to that prior

conviction before the jury, and a signed, sworn stipulation regarding that conviction

was admitted into evidence.

Additionally, without a request for a limiting instruction at the time of the

admission of the evidence, the trial court was not required to submit a limiting

instruction in the jury charge regarding the use of that prior conviction. Delgado, 235

S.W.3d at 251. Therefore, the charge was not erroneous on this basis. Kinchloe does not

complain of any other extraneous offenses admitted into evidence or that there are

other errors in the charge. We overrule Kinchloe’s sole issue.

Conclusion

Finding no reversible error, we affirm the judgment of the trial court.

TOM GRAY Chief Justice

Kinchloe v. State Page 3 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed July 20, 2011 Do not publish [CR25]

Kinchloe v. State Page 4