Stark, Glenn v. State ( 2000 )

NUMBER 13-99-227-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

GLENN STARK

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 214th District Court of Nueces County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez Opinion by Justice Dorsey

A jury found appellant Glenn Stark guilty of aggravated sexual assault and assessed punishment at life in prison. By two points of error he asserts that the trial court erred by allowing the State to present evidence of unadjudicated, extraneous offenses at the punishment phase pursuant to article 37.07(3)(a) of the Texas Code of Criminal Procedure because (1) it violated his due process rights under the Texas and U.S. Constitutions, and (2) the court failed to have a hearing outside the jury's presence to determine if the State could have proven the offenses beyond a reasonable doubt. We affirm.

During the punishment phase the State's attorney made an opening statement in which he told the jury that he would call as a witness appellant's stepdaughter, Valerie Bynum, to describe the sexual abuse she had to endure as a child while living with appellant. After the State's attorney finished his opening statement appellant objected to the prospective testimony of Bynum as follows:

I realize there is not much under the law on the part about the sexual assault of a child, I would like to have a hearing on that. I believe the testimony is going to be this is -- the alleged event took place 20 years ago. There were no charges ever brought. I believe that there are statute of limitations to handle these situations. And in fact, it was in another State, and under the statute of limitations they want to make these charges now. I believe it is highly prejudicial and that I don't think the evidence is going to have probative value. It is completely speculative as to what happened. I think that there is a problem with reliability on something that wasn't ever brought, no police charges were ever brought, something that happened supposedly 20 years ago.

The trial court overruled the objection. Valerie Bynum testified before the jury that when she was eight years old appellant forced her to have sex with him. She also testified that on another occasion he forced her to have sex with him.

By point one appellant asserts that the trial court erred by allowing the State to use the unadjudicated, extraneous offenses in the punishment phase pursuant to article 37.07(3)(a) because it violated his fundamental due process rights under the Texas and U.S. Constitutions. Specifically, he argues that admission of the extraneous offenses constituted a violation of the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution and Article 1, Section 19 of the Texas Constitution because each extraneous offense had not been "tested" through fundamental due process such as the right to grand jury indictment, right to remain silent, the right to jury trial, and the right to confrontation. Appellant did not lodge this objection to Bynum's testimony. To preserve a complaint for appellate review the accused must present 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); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). Because appellant is raising this complaint for the first time on appeal any error is waived. Rhoades, 934 S.W.2d at 120. We overrule point one.

By point two appellant asserts that the trial court erred by allowing the State to use unadjudicated, extraneous offenses at the punishment phase without first determining if the State could have proved the existence of the extraneous offenses beyond a reasonable doubt. Article 37.07(3)(a) states:

[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a) (Vernon Supp. 2000) (emphasis added).

In the instant case appellant argues that because the trial court did not determine whether the State could have proved the existence of the extraneous offenses beyond a reasonable doubt the trial court should not have let the evidence go before the jury. However in his objection to the court appellant did not ask the court to determine whether the State could prove the extraneous offenses beyond a reasonable doubt. Because the objection does not comport with the complaint on appeal we conclude that nothing is presented for our review. Santellan v. State, 939 S.W.2d 155, 171 (Tex. Crim. App. 1997). Further in Guerra v. State, 942 S.W.2d 28 (Tex. App.--Corpus Christi 1996, pet ref'd) the accused argued that article 37.07 requires that, before the jury hears testimony about an extraneous offense, the trial court should determine whether he had committed the extraneous offense beyond a reasonable doubt. We held "that the requirement of proof beyond a reasonable doubt for extraneous offense evidence during the punishment phase is properly left for the fact finder, in this case the jury, to decide." Guerra, 942 S.W.2d at 34. We overrule point two.

We affirm the trial court's judgment.

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 8th day of June, 2000.