Zarco v. State

210 S.W.3d 816, 2006 Tex. App. LEXIS 10904, 2006 WL 3754801
CourtCourt of Appeals of Texas
DecidedDecember 21, 2006
Docket14-04-01125-CR
StatusPublished
Cited by101 cases

This text of 210 S.W.3d 816 (Zarco v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zarco v. State, 210 S.W.3d 816, 2006 Tex. App. LEXIS 10904, 2006 WL 3754801 (Tex. Ct. App. 2006).

Opinions

MAJORITY OPINION

WANDA McKEE FOWLER, Justice.

In this appeal from a jury’s guilty verdict of indecency with a child, we are asked to find egregious harm from the trial court’s failure to give a reasonable doubt instruction at the punishment phase of trial. We also are asked to decide if the State timely identified its outcry witness when the proper notice was given only thirteen days before the jury was sworn but fourteen days before evidence was first received.

We conclude that appellant was not egregiously harmed by the lack of a reasonable doubt instruction because the weight of the evidence weighed heavily in A.C.’s favor, appellant’s defense was weak and never directly attacked A.C.’s claims, a correct instruction was given at the guilt phase, and the State’s closing argument in the punishment phase only briefly men[820]*820tioned the evidence from the trial phase. We also conclude that the State gave untimely notice of its outcry witness, but the notice — -one day shy of proper notice — did not harm appellant. We therefore affirm the jury’s finding of guilty to one incident of exposure to A.C., a child younger than twelve.

Factual and Procedural Background

A.C.,1 the complainant, lived with her father and his girlfriend, appellant’s mother.2 A.C.’s house had three bedrooms: A.C.’s bedroom, the father’s bedroom, and a third bedroom where appellant and his two brothers would sleep when there.3 The three brothers rotated staying at the complainant’s house.

A.C. testified at trial that appellant sexually abused her between the time she was in kindergarten and third grade. She testified not only to the charged act but to other similar bad acts appellant committed. A.C. was ten years old and in fourth grade when she testified. Her testimony regarding the charged offense and the extraneous offenses was clear, direct, and unimpeached, and each of the offenses— charged and uncharged — was described with the same degree of specificity, as illustrated in more detail below.

A.C. did not speak of the abuse to an adult or an older relative until she was in the third grade, during the 2003 Thanksgiving holidays, when she received some startling news. She was spending the holidays with her grandmother, who learned that A.C.’s father was to be deported to Mexico. The grandmother told A.C., who was distressed by the news. A.C. told an older cousin, Ashley, that she did not want to return to her father’s house if he was not there. She told Ashley that appellant would get into her bed, and that she was afraid to return to the house.

This reference to inappropriate behavior received a swift reaction from her grandmother and other relatives, who scheduled appointments with a female detective and with the Children’s Assessment Center in Houston. The information obtained in these meetings prompted the State to file charges against appellant. He was indicted for one incident of exposing his genitals to A.C., a child younger than twelve, on or before November 22, 2003.

At trial, A.C. testified to all of the incidents of abuse by telling the jury generally what would happen. The prosecutor also had her testify separately about the charged event, which occurred a month or so before Thanksgiving of 2003, and about another time when she ran to the door of her father’s bedroom. At the close of the guilt/innocence phase, the jury received a reasonable doubt instruction for the extraneous offenses. It found appellant guilty as charged.

During the punishment phase, appellant presented two witnesses; the State presented no evidence. The charge instructed the jury that the punishment was from two to ten years, which could be probated if the jury desired, and the charge instructed the jury that it could recommend community supervision — i.e., probation. The charge also reminded the jury of the State’s burden of proof, but it did not inform the jury that it could consider the extraneous offenses only if it found beyond [821]*821a reasonable doubt that appellant committed them. Appellant did not object to the charge’s failure to include this instruction. At the close of the evidence the jury found appellant guilty and assessed a three-year sentence without probation and no fíne.

Appellant filed this appeal alleging that (1) the trial court reversibly erred in not instructing the jury during the punishment phase that it could not consider any extraneous bad acts without first finding them true beyond a reasonable doubt; and (2) the State did not timely identify its outcry witness.

Analysis

I. Jury Charge Error

In his first issue, appellant contends the trial court committed error — during the punishment phase of the trial — when it failed to, sua sponte, give the jury a reasonable doubt instruction on extraneous offenses.4 As we explain below, we agree; however, we do not find that the error was harmful.

A. The Trial Court Erred

At the punishment phase, the State may introduce evidence of “an extraneous crime or bad act that is shown beyond a reasonable doubt.” Tex.Code Crim. Proc. art. 87.07, § 3(a)(1). This standard of proof is law applicable to the case. Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App.2000). A defendant is entitled to have the jury receive a reasonable doubt instruction regarding extraneous offenses without request. Id. It is error if the trial court fails to instruct the jury sua sponte. See id. A defendant need not object at trial to preserve error. Id. However, the failure to object increases appellant’s burden on appeal, imposing a higher hurdle appellant must overcome — namely egregious harm — before we can reverse. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984).

Here, the State referred to the evidence adduced at the guilt/innocence phase, which included both the indicted offense and the extraneous offenses. The State contends all of these instances comprised one transaction or occurrence and so did not require a reasonable doubt instruction. Appellant argues they are extraneous bad acts requiring an instruction that the jury could not consider them in assessing punishment unless it was convinced beyond a reasonable doubt the events did occur and were attributable to appellant. We agree with appellant that the indicted offense and the extraneous offenses were separate occurrences.

1. Not same-transaction contextual evidence.

The State’s primary claim is that the multiple instances of alleged abuse comprise one larger criminal act. “Circumstances of the offense ... tending] to prove the allegations of the indictment are not extraneous offenses.” Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App.1993) (citing Ramirez v. State, 815 S.W.2d 636, 643 (Tex.Crim.App.1991)). However, an extraneous offense is “any act of misconduct, whether resulting in prosecution [822]*822or not, that is not shown in the charging papers.” Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App.1996) (citing cases). The Court of Criminal Appeals recently reaffirmed that multiple instances of abuse occurring over several years are separate offenses. See Phillips v.

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Cite This Page — Counsel Stack

Bluebook (online)
210 S.W.3d 816, 2006 Tex. App. LEXIS 10904, 2006 WL 3754801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zarco-v-state-texapp-2006.