William Jason Pugh v. State ( 2015 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00066-CR
WILLIAM JASON PUGH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 22,041-2013
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Under procedures authorized by Article 38.37 of the Texas Code of Criminal Procedure,
William Jason Pugh was notified that, as part of the prosecution against him for two counts of
aggravated sexual assault of S.C.,1 a child, in Wood County, the State would seek to introduce
evidence that Pugh had committed four extraneous offenses of aggravated sexual assault of
children, including E.B. in Wood County, C.M. in both Wood County and Rains County, and the
alleged victim in this case, S.C., in a separate act in Wood County. The extraneous-offense
evidence was admitted, the jury found Pugh guilty of both counts, and he was sentenced to two
terms of life imprisonment to run concurrently.
Here, Pugh appeals from his conviction, in trial court case number 22,041-2013, of digital
penetration of the sexual organ of S.C. when she was a child younger than fourteen years of age. 2
He argues that the State’s notice of intent to introduce extraneous-offense evidence was defective,
the extraneous-offense evidence fell short of the standard to allow its admission, and the jury
instructions failed to instruct the jury how to apply the beyond-a-reasonable-doubt standard to the
extraneous offenses.
1
To protect the children’s privacy, we refer to the parents by pseudonyms and the children by their initials. See TEX.
FAM. CODE ANN. § 109.002(d) (West 2014).
2
In a companion appeal, our case number 06-14-00067-CR, Pugh appeals his conviction and sentence from trial court
case number 22,042-2013 in Wood County, in which he was prosecuted for penetration of S.C.’s sexual organ with
Pugh’s sexual organ when S.C. was less than fourteen years of age. By separate opinion, we also decide that appeal
this date.
2
We affirm the trial court’s judgment because (1) Pugh failed to preserve error regarding
the State’s Article 38.37 notice, (2) the trial court was within its discretion to admit extraneous-
offense evidence, and (3) there is no error in the jury charge.
(1) Pugh Failed to Preserve Error Regarding the State’s Article 38.37 Notice
Article 38.37 of the Texas Code of Criminal Procedure, titled “Evidence of extraneous
offenses or acts,” contains a Rule of Evidence applicable to certain types of sexual abuse cases,
including this one. See TEX. CODE CRIM. PROC. ANN. art. 38.37 (West Supp. 2014). In 2013,
Sections 2 and 2–a were added to Article 38.37 to “allow evidence that a person had committed
certain previous criminal offenses with any child victim to be admitted into trials for certain
offenses with child victims.” Act of May 28, 1995, 74th Leg., R.S., ch. 318, § 48, 1995 Tex. Gen.
Laws 2734, 2748–49, amended by Act of May 17, 2013, 83d Leg., R.S., ch. 387, § 1, secs. 2, 2–a,
2013 Tex. Sess. Law Serv. 1168, 1169 (West) (effective Sept. 1, 2013); HOUSE COMM. ON
CRIMINAL PROCEDURE REFORM. SELECT, BILL ANALYSIS, Tex. H.B. 330, 83d Leg., R.S. (2013);
see SENATE COMM. ON CRIMINAL JUSTICE, BILL ANALYSIS, Tex. S.B. 12, 83d Leg., R.S. (2013).
Section 3 of Article 38.37 requires the State to “give the defendant notice of the state’s intent to
introduce” such evidence in the State’s case-in-chief “not later than the 30th day before the date
of the defendant’s trial.” TEX. CODE CRIM. PROC. ANN. art. 38.37, § 3.
Here, the State gave notice to Pugh that it would seek to introduce extraneous-offense
evidence under Article 38.37. Pugh contends, however, that the State’s notice failed to meet the
statutory requirements of Article 38.37.
3
To preserve a complaint for appellate review, an appellant must have presented to the trial
court a timely request, objection, or motion stating the specific grounds for the ruling desired.
TEX. R. APP. P. 33.1(a)(1)(A); Hartson v. State, 59 S.W.3d 780, 787–88 (Tex. App.—Texarkana
2001, no pet.) (complaint of lack of notice of intent to use prior bad act, not preserved because no
similar objection made at trial). Here, Pugh failed to object to the contents or timing of the State’s
notice.3 Therefore, Pugh failed to preserve this issue for our review.
(2) The Trial Court Was Within Its Discretion to Admit Extraneous-Offense Evidence
Pugh also argues that the trial court erred in allowing the admission of Article 38.37
extraneous-offense evidence. The relevant portions of Article 38.37 state,
(a) Subsection (b) applies only to the trial of a defendant for:
(1) an offense under any of the following provisions of the Penal Code:
....
(E) Sections 22.021(a)(1)(B) and (2) (Aggravated Sexual
Assault of a Child);
....
(b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject
to Section 2–a, evidence that the defendant has committed a separate
offense described by Subsection (a)(1) . . . may be admitted in the trial of
an alleged offense described by Subsection (a)(1) . . . for any bearing the
evidence has on relevant matters, including the character of the defendant
and acts performed in conformity with the character of the defendant.
3
During the pretrial hearing on Article 38.37 issues, Pugh objected “to any extraneous offenses coming into the State’s
case-in-chief under 38.37,” arguing that it violated due process and the Fifth Amendment and was more prejudicial
than probative.
4
TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2. However, before such extraneous-offense evidence
may be introduced at trial, the trial court must “(1) determine that the evidence likely to be admitted
at trial will be adequate to support a finding by the jury that the defendant committed the separate
offense beyond a reasonable doubt; and (2) conduct a hearing out of the presence of the jury for
that purpose.” TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2–a.
A trial court’s ruling on the admissibility of extraneous offenses is reviewed under an
abuse-of-discretion standard. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011); see
Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). “A trial court does not abuse its
discretion if the decision to admit evidence is within the ‘zone of reasonable disagreement.’”
Marsh v. State, 343 S.W.3d 475, 478 (Tex. App.—Texarkana 2011, pet. ref’d) (quoting
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g)). “If the trial
court’s decision on the admission of evidence is supported by the record, there is no abuse of
discretion, and the trial court will not be reversed.” Id. (citing Osbourn v. State, 92 S.W.3d 531,
537 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379). Where there has been no abuse
of discretion, we will not substitute our own decision for that of the trial court. Id. (citing Moses
v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)).
In the Article 38.37 hearing, the State sought to introduce evidence that Pugh had
committed the extraneous offenses of aggravated sexual assault of a child with E.B. in Wood
County, with C.M. in both Wood County and Rains County, and with the alleged victim in this
5
case, S.C., in Wood County. During the hearing, the court viewed recorded Child Advocacy
Center (CAC) interviews from the three alleged victims.4
The victim of the charged offense, S.C., described two separate instances of Pugh sexually
abusing her. The first occurred when she was in the sixth grade. She and Pugh were on the couch
in the living room of Pugh’s house when he took off her clothes and pulled his shorts and
underwear down. He touched her vagina with his hand and stuck his finger into her vagina and
then put his penis in her vagina. He told her not to tell anyone about it because he would get in
trouble.
In her interview, extraneous-offense victim, C.M., said that she, her mother, and her sister
lived with Pugh for several years. When she was six or seven years old, Pugh began sexually
abusing her. The first time, Pugh forced her to perform oral sex on him. After that, Pugh forced
her to have vaginal intercourse with him two to three times per week for about three years. Several
times, Pugh told her that, if she told anyone about the abuse, he would kill her. The abuse having
continued, C.M. believed she was in the fourth grade when she ran away from home. After she
was apprehended, she was put on house arrest, and the abuse “got worse” because Pugh forced
intercourse on her more frequently. Two or three weeks later, she made an outcry to her
grandmother, and the abuse stopped. C.M.’s mother and Pugh “split up” about a year later.
Extraneous victim, E.P., twenty-one years’ old at the time of trial, stated that Pugh first
sexually abused her at her parent’s home in Mineola when she was thirteen years old. She was in
the bathroom, wearing a towel, about to take a shower when Pugh entered the bathroom, removed
4
The State informed the trial court that it would call all three of the victims to testify at trial.
6
her towel, and had intercourse with her on the bathroom floor. At or near the end of her seventh-
grade year, while she was babysitting at Pugh’s house in Mineola, he forced her to have
intercourse. A third and fourth instance of abuse occurred during the summer between her seventh-
and eighth-grade years, when she and her parents were at Pugh’s house getting ready for a party
that would be held there later that night. Her parents would leave the house for a few minutes, and
Pugh would “[do] it again.” The abuse stopped when she told him that, if he did not stop, she
would tell her father.
After viewing the recorded CAC interviews, the trial court found that the evidence likely
to be admitted at trial, if believed, would be adequate to support a finding by the jury that Pugh
had committed the extraneous offenses beyond a reasonable doubt. On appeal, Pugh argues that
the extraneous-offense evidence regarding S.C. is insufficient because there was no evidence of
(1) the county in which the offenses occurred, (2) Pugh’s mens rea at the time the offenses were
committed, or (3) the date of the offenses.5 He does not challenge the admission of the extraneous-
offense evidence regarding C.M. or E.B.
The trial court’s responsibility at an Article 38.37 hearing is to determine whether “the
evidence likely to be admitted at trial will be adequate to support a finding by the jury that the
defendant committed the separate offense beyond a reasonable doubt.” TEX. CODE CRIM. PROC.
ANN. art. 38.37, § 2–a. A person commits the offense of aggravated sexual assault of a child if he
“intentionally or knowingly . . . causes the penetration of the anus or sexual organ of a child by
5
In support of his arguments, Pugh exclusively cites the testimony of Karen, S.C.’s mother, and Martha Dykes, the
program director of the CAC. However, Karen and Dykes testified as a part of the “outcry hearing,” and their
testimony was not before the trial court at the time it made its Article 38.37 ruling.
7
any means” and the child is younger than fourteen years of age. TEX. PENAL CODE ANN.
§ 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2014).
The county in which the offense occurred is not an element of the offense of aggravated
sexual assault of a child under Section 22.021 of the Texas Penal Code. Rather, proof of the county
in which an offense occurred is a jurisdictional requirement for the prosecution of an offense.
Here, the State’s Article 38.37 notice lists the county where each of the extraneous offenses
allegedly occurred, and Pugh was not being prosecuted for the offenses at that time. Thus, for
purposes of proving an extraneous offense under Article 38.37, there was no requirement that the
State prove the county in which the extraneous offense occurred. See Burke v. State, 371 S.W.3d
252, 257 (Tex. App.—Houston [1st Dist.] 2011, pet. dism’d, untimely filed); see also Malpica v.
State, 108 S.W.3d 374, 378 (Tex. App.—Tyler 2003, pet. ref’d) (citing Stevenson v. State, 963
S.W.2d 801 (Tex. App.—Fort Worth 1998, pet. ref’d)).
“Intent may . . . be inferred from circumstantial evidence such as acts, words, and the
conduct of the appellant.” Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Here,
the trial court could have found that Pugh’s removing his and S.C.’s clothing, as well as his
penetration of S.C.’s vagina, would support a rational jury’s determination that the acts were
committed intentionally or knowingly.
Pugh also contends that the extraneous-offense evidence was insufficient because there
was no evidence of the date when the offenses allegedly occurred, as is required by statute. See
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (West Supp. 2014). Pugh’s reliance is misplaced
because Article 37.07, Section 3, entitled “Evidence of prior criminal record in all criminal cases
8
after a finding of guilty,” is inapplicable because it governs the procedure for the admissibility of
evidence at punishment, not guilt/innocence.6 TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3 (West
Supp. 2014).
In light of the Article 38.37 hearing, we cannot say that the trial court abused its discretion
in finding that the evidence likely to be admitted at trial would be adequate to support a finding by
the jury that the defendant intentionally and knowingly committed the separate offenses against
S.C. beyond a reasonable doubt.7 Accordingly, we overrule this point of error.
(3) There Is No Error in the Jury Charge
In its jury charge, the trial court set forth the elements of the offense of aggravated sexual
assault of a child and also submitted the following to the jury:
You are instructed that if there is any testimony before you in this case regarding
the defendant having committed offenses other than the offense 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 only
consider the same in determining the intent of the defendant, if any, in connection
with the offense, if any, alleged against him in the indictment in this case, and for
no other purpose.
6
In any event, failure to comply with Article 37.07 does not render extraneous-offense evidence per se inadmissible.
Roethel v. State, 80 S.W.3d 276, 282 (Tex. App.—Austin 2002, no pet.). Unlike the Rules of Evidence, “[t]he notice
requirement found in section 3(g) . . . does not relate to the substantive admissibility of the evidence.” Id. Rather,
because the “purpose of the notice requirement is to enable the defendant to prepare to meet extraneous offense
evidence,” a deficiency in the notice is analyzed on how it affected a defendant’s ability to prepare for the evidence.
Id.; see Andrews v. State, 429 S.W.3d 849, 860 (Tex. App.—Texarkana 2014, pet. ref’d); James v. State, 47 S.W.3d
710, 713 (Tex. App.—Texarkana 2001, no pet.). Here, S.C. and the other alleged victims, during the Article 38.37
hearing, testified in detail about the abuse they suffered at Pugh’s hands and were subjected to his cross-examination.
Consequently, Pugh does not claim on appeal that he was surprised by their testimony at trial or that the omission of
the date on which the abuse occurred impaired his ability to prepare for their testimony at trial.
7
Pugh does not contend that the evidence actually introduced at trial was insufficient to prove the extraneous offense
beyond a reasonable doubt.
9
Pugh concedes that he did not object to the trial court’s charge. He argues, however, that the jury
charge should have contained an application paragraph for each of the extraneous offenses for
which the State offered testimony.
Our review of alleged jury charge error involves a two-step process. Abdnor v. State, 871
S.W.2d 726, 731 (Tex. Crim. App. 1994); see Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim.
App. 2009); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Initially, we determine
whether an error occurred, and then “determine whether sufficient harm resulted from the error to
require reversal.” Abdnor, 871 S.W.2d at 731–32; Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1984) (op. on reh’g), reaff’d by Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.
App. 2003).
The purpose of the application paragraph is to apply the relevant law, definitions found in
the abstract, and general legal principles to the particular facts of the case. Vasquez v. State, 389
S.W.3d 361, 366 (Tex. Crim. App. 2012) (citing Gray v. State, 152 S.W.3d 125, 127–28 (Tex.
Crim. App. 2004)). Here, the specific application portion of the charge addressed only the State’s
allegation that Pugh committed aggravated sexual assault of S.C. and omitted any reference to the
extraneous-offense instruction. However, we find that the Article 38.37 instruction present in the
jury charge was an additional application instruction because, even though general in nature, the
instruction applied the requirements of Article 38.37 to “any testimony” the jury heard “regarding
the defendant having committed offenses other than the offense alleged against him in the
10
indictment.”8 Further, Pugh has failed to cite any authority on point demonstrating that any further
instruction or charge was required to be submitted to the jury. We find no error in the jury charge.
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: February 13, 2015
Date Decided: April 15, 2015
Do Not Publish
8
We presume the jury obeyed this instruction. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003).
11