In The
Court of Appeals
For The
First District of Texas
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NO. 01-02-00582-CR
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WILLIAM HORACE WARD, III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 881494
MEMORANDUM OPINION
After a jury found appellant, William Horace Ward, III, guilty of the felony offense of driving while intoxicated (DWI), appellant pled true to an enhancement paragraph alleging one prior felony conviction, and the jury assessed punishment at 15 years’ confinement in prison. In his first and third points of error, appellant contends that the trial court erred by declining to issue a limiting instruction to the jury regarding the jury’s use of extraneous-offense evidence introduced during the guilt-innocence stage of trial. In his second point of error, appellant contends that the trial court erred by declining to instruct the jury on the State’s burden to prove beyond a reasonable doubt the extraneous offenses admitted during the punishment stage of trial. We affirm.
Background
On July 6, 2001, appellant was indicted for felony DWI. In two jurisdictional enhancement paragraphs, the indictment alleged that appellant was previously convicted of DWI twice, in 1996 and 1998. In a single punishment enhancement paragraph, the indictment alleged that appellant was previously convicted of burglary of a building in 1982.
During the guilt-innocence stage of trial, the State cross-examined appellant regarding two extraneous DWI convictions that appellant received in 1988 and 1990. Appellant neither objected nor requested a limiting instruction concerning this line of cross-examination. Instead, appellant admitted that he was convicted of DWI in 1990, but denied that he was convicted of DWI in 1988.
In addition, the arresting deputy testified during the guilt-innocence stage regarding two marijuana cigarettes that were found in appellant’s truck. Appellant objected to this testimony, and the trial court sustained the objection. Appellant did not request an instruction to disregard, however, and the trial court did not give the instruction sua sponte. Thereafter, at the conclusion of the guilt-innocence stage, the trial court did not instruct the jury that, although extraneous-offense evidence may be used to assess the defendant’s credibility as a witness, extraneous offenses may not be considered as evidence of the defendant’s guilt. Limiting Instruction
In his first and third points of error, appellant contends that the trial court erred by not including in the jury charge a limiting instruction regarding consideration of extraneous-offense evidence admitted during the guilt-innocence stage of trial. See Tex. R. Evid. 105(a). Appellant argues that the trial court should have issued a limiting instruction both when the extraneous-offense evidence was admitted and in the charge to the jury. According to appellant, the following extraneous offenses were admitted at trial and warranted a limiting instruction from the trial court: (1) evidence that appellant was convicted for DWI in 1988 and 1990; (2) evidence that appellant possessed marijuana in his truck at the time of his arrest; and (3) evidence that appellant “sprayed rocks” over two individuals in a bar parking lot.
Rule 105(a) states:
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court’s action in admitting such evidence without limitation shall not be a ground for complaint on appeal.
Tex. R. Evid. 105(a) (emphasis added). Citing rule 105(a), the Court of Criminal Appeals has held that the party opposing evidence must object and request the limiting instruction when the evidence is introduced. Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001); Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994). When a defendant does not request a limiting instruction at the first opportunity, the evidence is admitted for all purposes. See Hammock, 46 S.W.3d at 895; Garcia, 887 S.W.2d at 878. Once evidence is admitted for all purposes, a trial court need not issue a limiting instruction to the jury regarding that evidence. Hammock, 46 S.W.3d at 895.
Because appellant did not request a limiting instruction when the extraneous-offense evidence was introduced and admitted, the evidence was admitted for all purposes, and appellant was not entitled to a limiting instruction in the jury charge. See id. Thus, we hold that the trial court did not err by not issuing a limiting instruction in the jury charge regarding the admitted extraneous-offense evidence.
We overrule points of error one and three.
Extraneous Offenses
In his second point of error, appellant argues that, at the punishment stage, the trial court erred in declining to instruct the jury that it could not consider any evidence of extraneous offenses or bad acts unless they were proven beyond a reasonable doubt. Appellant argues that this omission by the trial court resulted in egregious harm that entitles him to a new punishment trial.
During the punishment stage of trial, appellant stipulated that he had previously been convicted of burglary of a building as alleged in the punishment enhancement paragraph. In addition to this conviction, as well as the 1996 and 1998 DWI jurisdictional enhancement convictions, the State introduced evidence that appellant had been convicted of 10 previous offenses, including convictions for driving with an invalid license, possession of marijuana, and two additional DWI offenses.
Appellant did not object to the jury charge at the punishment stage. The State concedes that the charge was erroneous as written. See Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000) (holding that article 37.07 of Code of Criminal Procedure requires trial court to instruct jury on burden of proof for extraneous offenses, irrespective of whether instruction was requested). Because appellant did not object to the omission of this instruction from the charge, we must determine whether the error was so egregious and created such harm that appellant “has not had a fair and impartial trial.” See Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App. 1985); Santos v. State, 961 S.W.2d 304, 306 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). To decide whether the harm was egregious, we evaluate the harm in light of (1) the entire jury charge, (2) the state of the evidence, including the contested issues and weight of probative evidence, (3) the argument of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 172; Santos, 961 S.W.2d at 306. It is appellant’s burden to show that he suffered actual harm, as opposed to theoretical harm, as a result of the charge error. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).
Although a reasonable-doubt instruction concerning extraneous offenses was not included in the jury charge, we hold that appellant has not shown that he was egregiously harmed by the omission. Almanza, 686 S.W.2d at 174. Although the jury charge did not expressly mention extraneous offenses, it did instruct the jury that the State had the burden to prove beyond a reasonable doubt the allegations contained in the enhancement paragraph. Furthermore, during the punishment phase, the State presented extensive evidence, including fingerprint analysis, prior judgments, and jail cards, to prove that appellant committed the extraneous offenses that were admitted during punishment.
In contrast, appellant presented no evidence to counteract the State’s proof regarding extraneous offenses. Although appellant generally objected to evidence of his possession of a controlled substance conviction that occurred in 1984, appellant never (1) contested that he committed the remaining extraneous offenses, (2) presented evidence concerning the extraneous offenses, (3) cross-examined the officers who discussed the facts surrounding his extraneous offenses, (4) argued to the jury that the officers were mistaken or lying, or (5) argued that the State failed to prove the offenses beyond a reasonable doubt. And although appellant correctly asserts that the prosecutor mentioned the extraneous offenses during his closing argument at the punishment stage, argument of counsel is but one factor to consider when conducting an Almanza harm analysis.
Thus, after considering the entire charge, the state of the evidence, the argument of counsel, and other relevant information, we conclude that appellant has not met his burden to show that the omission of a reasonable-doubt instruction in the jury charge resulted in egregious harm. See Almanza, 686 S.W.2d at 174.
We overrule point of error two.
Conclusion
We affirm the judgment of the trial court.
/s/ Elsa Alcala
Justice
Panel consists of Justices Hedges, Jennings, and Alcala.
Do not publish. Tex. R. App. P. 47.4.