Musachia, Sammy Joseph v. State

Affirmed and Opinion filed May 29, 2003

Affirmed and Opinion filed May 29, 2003.

In The

Fourteenth Court of Appeals

____________

NOS. 14-02-00314-CR

14-02-00315-CR &

          14-02-00316-CR

____________

SAMMY JOSEPH MUSACHIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause Nos. 874,897; 893,962; and 893,963  

O P I N I O N

In three separate indictments, appellant, Sammy Joseph Musachia, was charged with indecency with a child based on a single incident involving three victims: S.W., S.G., and A.G.  See Act of May 29, 1993, 73d Leg., R.S., ch. 900, ' 1.01, sec. 21.11(a)(2), 1993 Tex. Gen. Laws 3586, 3616 (subsequently amended, current version at Tex. Pen. Code Ann. ' 21.11(a)(2)(A) (Vernon 2003)).  A jury found appellant guilty of all three charges and assessed punishment at two years’ confinement in the Texas Department of Criminal Justice, Institutional Division for each of the three charges.  The court imposed the sentences for the offenses against S.W. and S.G. to run cumulatively and the sentence for the offense against A.G. to run concurrently.

In ten issues, appellant challenges the factual sufficiency of the evidence, the admissibility of extraneous offense evidence, and omissions in the jury charge at the punishment phase.  Concluding there is no reversible error, we affirm.

I.  FACTUAL BACKGROUND

On April 12, 2001, at approximately seven o’clock p.m., three eleven- and twelve-year old girls, S.W., A.G., and S.G., were outside S.W.=s house when they saw appellant driving a black truck on S.W.’s street.  Appellant pulled in and out of at least one driveway and stopped in front of the girls at a stop sign.^[1]  The girls approached the truck and briefly spoke with appellant, who then allegedly exposed himself and began to masturbate.  All three girls testified they saw his penis and demonstrated what he was doing with it.  It was light outside and the girls could see him clearly through the passenger side window of his truck.  S.W. testified she thought appellant was wearing shorts, but she was not sure. After seeing appellant expose himself, the girls ran away from the truck, and appellant drove away.  S.W.’s niece, Holly Huetwohl, and Huetwohl=s boyfriend, James Montgomery, came outside and the girls told them what happened.  As the girls were explaining what happened, the truck drove by again. The girls identified it, so Huetwohl and Montgomery followed the truck and noted appellant’s license plate number. Huetwohl testified appellant was driving in an evasive manner, driving over the posted speed limit of 20 miles per hour, and speeding up so they were not behind him until he became stuck behind some cars.^[2]  In separate photographic arrays, each girl positively identified appellant as the offender.  Each girl also identified appellant at trial.

Appellant testified in his own defense.  Appellant admitted he spoke with the girls, and he drove around in their neighborhood that day, but denied exposing himself and masturbating.  On direct examination, he claimed he was driving around looking for rental homes.  On cross examination, he testified he was not looking for a house when he was on that street nor getting information about houses in that neighborhood.  He testified he was wearing blue jeans that day, and does not routinely wear shorts.^[3]  Appellant=s ex-wife testified he is very modest.  Appellant testified he had oversized tires on the truck, and it would be impossible for the girls to see his lap from where they were standing. Appellant=s father and sister agreed appellant=s truck sits too high for anyone on the outside to see inside.  Additionally, appellant=s father, sister, ex-wife, and a couple of appellant=s co-workers testified appellant is known to be a truthful and honest person.

Dr. Harvey Rosenstock, M.D., qualified by the trial court as an expert on sexology  and psychiatry, testified appellant=s lifestyle was not consistent with the lifestyle of an exhibitionist.  Rosenstock interviewed appellant three times to formulate his opinion, but did not interview the witnesses or any of appellant=s family members and friends.

In rebuttal, the State called S.D. for the stated purpose of establishing appellant=s intent and motive. S.D., who was eleven years old at the time of the trial, was also an alleged victim of indecent exposure by appellant in February 2001.  She testified she was rollerblading in a neighborhood approximately eight miles from the neighborhood where S.W. lives when appellant pulled up next to her at a stop sign.  He exposed his genitals and masturbated in front of her.  He was driving a black truck.^[4]  It was light outside and she could see what he was doing clearly.  She was able to identify him from the photographic array and at trial.

II.  DISCUSSION

A.  Issue Ten:  Factual Sufficiency of the Evidence

1. Standard of Review

In issue ten, appellant challenges the factual sufficiency of the evidence.  Our review of factual sufficiency begins with the presumption the evidence is legally sufficient.  Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). When conducting a factual sufficiency review, we view the evidence in a neutral light favoring neither party.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  When a defendant challenges the factual sufficiency of the elements of an offense, the correct standard we must follow requires us to determine whether (1) the proof of guilt is so obviously weak as to undermine confidence in the jury=s verdict, or (2) the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Zuliani v. State, 97 S.W.3d 589, 593B94 (Tex. Crim. App. 2003);  Johnson, 23 S.W.3d at 11.  We must accord due deference to the fact finder=s determinations, particularly those determinations concerning the weight and credibility of the evidence.  Johnson, 23 S.W.3d at 9.  The verdict should be set aside only in order to prevent a clearly wrong and unjust result. See Jones, 944 S.W.2d at 648.

2. Analysis

A person commits the offense of indecency with a child if, with a child younger than 17 years and not the person=s spouse, the person, with intent to arouse or gratify the sexual desire of any person, exposes any part of his genitals, knowing the child is present.  See Act of May 29, 1993, 73d Leg., R.S., ch. 900, ' 1.01, sec. 21.11(a)(2), 1993 Tex. Gen. Laws 3586, 3616 (subsequently amended, current version at Tex. Pen. Code Ann. ' 21.11(a)(2)(A) (Vernon 2003)). At trial, the only factual element in dispute was whether appellant exposed his genitals.

The evidence in support of the jury=s verdict was primarily found in the eyewitness testimony from the three victims of the charged offenses, as set forth in Part I, above (Factual Background).  Appellant urges this court to consider whether the evidence he presented at trial greatly outweighs the victims= testimony.  Appellant bases his factually insufficiency argument on testimony regarding three aspects of the incident: (1) appellant=s purpose for being in the neighborhood, supported by appellant=s testimony he was in the neighborhood looking for rental houses; (2) appellant=s failure to show consciousness of guilt, supported by Montgomery=s testimony appellant did not drive in an evasive manner when followed by Huetwohl and Montgomery; and (3) the impossibility of the victims= being able to see appellant=s lap, supported by multiple witnesses= testimony appellant=s truck was too high  for the girls to have seen appellant=s lap area.  There was conflicting evidence on each of these points.

Appellant=s sister testified she and her brother were looking for houses to rent in April 2001, and they were looking in S.W.=s neighborhood because she wanted to stay in the same school district for her children.  She explained that one method of house hunting they used was to drive around and find houses that were for lease.  On direct examination, appellant said he was driving around looking for rental houses on April 12, 2001.  However, on cross examination he said he was not looking for houses on S.W.=s street or writing down information about houses in that neighborhood.

Montgomery testified appellant was driving at a normal rate of speed or slower, with no attempt at evading them.  In Huetwohl=s opinion, however, appellant was driving in an evasive manner because he was driving over the speed limit of 20 miles per hour and seemed to be speeding up so they would not be behind him.

After the three victims testified they could clearly see appellant=s lap, the defense called witnesses to refute this testimony.  Appellant=s father testified he was familiar with the truck and had to step up to get in it.  Appellant=s sister=s testimony was consistent with his father=s regarding the height of the truck.  She also stated that she would not be able to see in the truck from the passenger=s side standing three to five feet away from it.  She did not, however, know whether her answers would change if she were standing on the curb, but insisted no one could see inside if the windows were half-way up.  Appellant testified his truck had oversized tires, raising the height by two inches, and making it impossible for someone standing three to four feet from the side of the truck to see the lap area of the driver.  Appellant, however, told his own expert witness the three victims stuck their heads in his car.

What weight to give contradictory testimonial evidence is within the sole province of the trier of fact, because weight turns on the evaluation of credibility and demeanor.  Cain v. State, 958 S.W.2d 404, 408B409 (Tex. Crim. App. 1997).  We must show deference to the jury=s findings.  Id. at 409.  A decision is not manifestly unjust merely because the jury resolved the conflicting views of evidence in favor of the State.  Id. at 410.

Appellant also points to evidence regarding his own character: (1) appellant=s own testimony that, as a paramedic, he frequently came into contact with people in various states of dress and never acted inappropriately; (2) appellant=s former wife=s testimony appellant was modest and never wore shorts; and (3) the expert=s testimony appellant=s behavior was not consistent with behavior of an exhibitionist.  This evidence relates to the credibility of the defendant, and is an area reserved for the jury.  See Johnson, 23 S.W.3d at 7.  The jury is the sole judge of the credibility of this witness and the weight to be given to the testimony.  Id.

Appellant=s factual sufficiency argument fails because the jury is the sole judge of witness credibility.  See id.  The State=s proof of appellant=s guilt is not so obviously weak that it undermines confidence in the jury=s verdict; neither is the State=s proof greatly outweighed by contrary proof.  See Zuliani, 97 S.W.3d at 593B94.  Viewing all of the evidence in a neutral light, we hold the evidence to be factually sufficient.

We overrule appellant=s issue ten.

B. Issues One through Three: Appellant’s Evidentiary Challenges to S.D.=s Testimony

In issues one and two, appellant argues S.D.=s testimony was inadmissible propensity evidence and its admission violated Texas Rule of Evidence 404(b).  In issue three, appellant argues the prejudicial effect of the evidence outweighed its probative value, and admission of the evidence violated Texas Rule of Evidence 403.  We conclude admission of the evidence was error under Texas Rule of Evidence 404(b), but the error was harmless.  Given our resolution of issues one and two, we need not address issue three.

1. Legal Standard and Standard of Review

Rule 404(b) provides:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.  It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .

Tex. R. Evid. 404(b). Evidence is not admissible merely because it fits within one of the purposes enumerated in Rule 404(b), for a purpose other than character conformity.  Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996). Admissibility hinges on the relevancy of the evidence to a fact of consequence in the case.  Id.  Extraneous offense evidence is admissible if the proponent persuades the trial court the extraneous evidence (1) tends to establish some elemental fact; (2) tends to establish some evidentiary fact, such as motive, leading inferentially to an elemental fact; or (3) rebuts a defensive theory.  See Santellan v. State, 939 S.W.2d 155, 168B69 (Tex. Crim. App. 1997).  The proponent of the evidence must show that evidence has relevance apart from showing character conformity.  See Rankin, 974 S.W.2d. at 718; Montgomery v. State, 810 S.W.2d. 372, 387 (Tex. Crim. App. 1991).  Rule 404(b) incorporates the fundamental tenet of our criminal justice system that an accused may be tried only for the offense for which he is charged and not his criminal propensities.  Rankin, 974 S.W.2d at 718; see Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992).

We review the trial court=s admission of extraneous offense evidence under an abuse of discretion standard.  Rankin, 974 S.W.2d at 718.  A trial court abuses its discretion when it acts arbitrarily or unreasonably without reference to any guiding rules or principles.  See Montgomery, 810 S.W.2d. at 380.

2.  Analysis

Admissibility under Texas Rule of Evidence 404(b).  Over appellant=s objection, the State offered S.D.=s testimony in rebuttal for the purpose of showing appellant=s intent and motive.  The trial court admitted the evidence for those purposes, and, in its final charge to the jury, instructed the jury it could consider evidence of other offenses only “in determining the motive or intent of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.”

On appeal, as he did in the trial court, appellant argues the evidence was improperly admitted to prove intent because intent was not a factual element in dispute.  We agree. The ultimate fact in dispute was whether appellant committed the act, not whether it was performed with the requisite intent.  The intent could be clearly inferred from the evidence presented by the State without the necessity of the use of an extraneous offense.  See Prior v. State, 647 S.W.2d 956, 957, 959 (Tex. Crim. App. 1983) (holding that intent could be inferred from appellant=s act when he “lifted up his bottom” from the car seat and exposed his penis, which appeared to be erect and moved it back and forth with his hand).

In Rankin, the Court articulated that, when the State=s direct evidence clearly shows the intent element of the crime and that evidence is not contradicted by the defendant nor undermined by cross-examination of the state=s witnesses, the offer of other crimes is unjustified because of the lack of relevance.  Rankin, 974 S.W.2d at 719.  In the present case, the jury heard testimony from the three victims, describing and demonstrating the act they allegedly saw appellant perform.  From that testimony the jury could clearly infer the requisite intent of the offense.  The trial court abused its discretion by admitting the extraneous evidence in order to prove intent^[5].

The extraneous evidence was also not admissible to prove motive. Motive is not an essential element of a criminal offense and need not be proved to establish the commission of the offense.  Zulani v. State, 903 S.W.2d 812, 826 (Tex. App.CAustin 1995, pet. ref=d).  The State, nevertheless, suggests the evidence was offered to rebut appellant=s claim he was in the neighborhood looking for houses.  The relevance of S.D.=s evidence to this theory, however, would require the jury to infer, because appellant had exposed himself to S.D. when in her neighborhood, he therefore was in S.W.=s neighborhood to expose himself to young girls. Thus, the evidence would only show his action to be in conformity with his character, which is exactly what Rule 404(b) prohibits.  See Rankin, 974 S.W.2d at 718.

On appeal, the State argues the extraneous offense evidence was admissible to rebut various other defensive theories.  Ordinarily, evidence of extraneous offenses committed by the accused is admissible to refute defensive theories raised by the accused. Wheeler v. State, 67 S.W.3d 879, 886 n.18 (Tex. Crim. App. 2002); see also Albrecht v. State, 486 S.W.2d 97, 101 (Tex. Crim. App. 1972).  But admissibility for this purpose is not without limits.  See Wheeler, 67 S.W.3d at 886B87 (holding extraneous offense witness=s testimony not admissible to rebut defense expert=s testimony defendant not type person to pose risk of abuse, but admissible to rebut defensive theory of lack of opportunity). In addition, when a theory of admissibility is not presented to the jury by means of a limiting instruction, an appellate court has no way to know whether the jury properly applied the evidence consistent with that theory.  See Owens, 827 S.W.2d at 917 (Tex. Crim. App. 1992).

The State first argues the testimony of S.D. was admissible to rebut the false impression left by the expert called by the defense.  The expert=s testimony implied appellant was not the a type of person to commit such an act.^[6]  When a witness presents a picture that a defendant is not the type of person to commit the charged offense, the prosecution may impeach that witness=s testimony by cross-examination.  Wheeler, 67 S.W.3d at 885.  The State is allowed full inquiry into the facts and data upon which the expert relied.  Id. The evidentiary caveat is that the opponent must correct the false impression through cross-examination of the witness who left the false impression, not by calling other witnesses to correct that false impression.  Id.  Under Wheeler, the trial court could not admit S.D.=s testimony solely to rebut the expert witness called by appellant.^[7]

The State also argues the extraneous evidence was admissible to rebut the defensive theory of mistake.  As an example of this defensive theory, the State points to appellant=s closing argument, in which appellant suggested one of the girls possibly saw a reflection in the window of the defendant=s truck and drew a mistaken conclusion based on a suspicion.  Appellant first introduced this theory in his closing argument, so the extraneous offense evidence could not possibly have been offered to rebut this defensive theory; the theory did not exist when the State offered the evidence.  Furthermore, to use the evidence to establish absence of mistake by the victims, the jury would have to reason the victims were not mistaken because someone who exposed himself previously was likely to have acted in conformity with his previous behavior.  Once again, this would be an improper purpose.  The evidence must be relevant to some other purpose apart from showing character.  Rankin, 974 S.W.2d at 718.

Finally, the State argues the evidence was admissible to rebut appellant=s defensive theory of impossibility due to the height of appellant=s truck.  This defensive theory rested on appellant=s testimony about the height of his truck and visibility from where the girls were standing and testimony from appellant=s father and sister who agreed the truck was too high for the girls to have seen appellant=s lap area.

The State=s rebuttal theory of admissibility, however, was not presented to the jury in a limiting instruction.  In Owens, the intermediate court of appeals upheld the admissibility of extraneous offense evidence on the ground it rebutted the defendant=s “implied” theory of having been framed.  Owens v. State, 795 S.W.2d 822, 824B25 (Tex. App.CTexarkana 1990), rev=d, 827 S.W.2d 911 (Tex. Crim. App. 1992). The court of criminal appeals reversed, criticizing the intermediate court for upholding the admissibility of extraneous offense evidence on a theory that was not presented to the jury in a limiting instruction.  827 S.W.2d at 917.  The court of criminal appeals stated that, absent an additional limiting instruction, there was no way to know whether the jury properly applied the extraneous evidence to rebut the weight and credibility of the defendant=s frame-up theory or whether the jury relied on it for an improper basis such as character conformity.  Id.

In the present case, the trial court did not include rebuttal of the impossibility defense in the limiting instruction to the jury. Because the trial court did not do so, we cannot consider rebuttal of the defensive theory of impossibility as a proper purpose to admit the extraneous evidence.  See id.

The extraneous acts evidence was inadmissible because the trial court failed to identify a legitimate purpose for its admission under Rule 404(b).  Based on the foregoing analysis, we conclude the trial court abused its discretion in admitting the evidence of appellant=s extraneous offense under Rule 404(b).  Now, we must determine whether admission of the evidence was harmful.

Harm analysis.  The erroneous admission of an extraneous offense does not constitute constitutional error.  Peters v. State, 93 S.W.3d 347, 354 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).  Therefore, unless the error affected appellant=s substantial rights, we must disregard it. See Tex. R. App. P. 44.2(b).  An error affects a substantial right when the error had a substantial and injurious effect or influence on the jury=s verdict.  King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).  If the error had no influence or only  a slight influence on the verdict, it is harmless.  See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).  However, if we harbor “grave doubts” the error had a substantial influence, the conviction may not stand.  See United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 732 (1986), cited in Webb v. State, 36 S.W.3d 164, 182 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  In assessing the likelihood that the error adversely affected the jury=s decision, we should consider everything in the record, including all testimony and evidence admitted for the jury=s consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how the error might have been considered in connection with other evidence in the case.  Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim App. 2002) (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)).  We may also consider the jury instructions, the State=s theory of the case, the defensive theories, closing arguments, and whether the State emphasized the error.  See id. at 355B56.

In the present case, it is doubtful S.D.=s testimony had more than a slight effect upon the jury=s decision.  We acknowledge there was substantial similarity between the extraneous offense and the charged offenses.  See Webb, 36 S.W.3d at 183 (referring to striking similarities between charged offense and extraneous offense).  Nevertheless, unlike Webb, this is not a case in which the credibility of a single victim was set against the credibility of the defendant.  Rather, the jury heard testimony from three victims of the charged offenses.  The three victims provided consistent stories about what transpired between them and appellant.  All victims of the charged offenses were able to identify appellant, and he admitted to being there.  There was no suggestion the victims were lying or had any motive to lie; nor was there any attack on their credibility.  S.D.=s testimony did not significantly bolster the State=s case.

The State=s direct examination of S.D. occupies less than ten pages of the reporter=s record, compared to over 37 pages for S.W.=s direct examination, 34 pages for A.G.=s, and 24 for S.G.=s.  The State made only five brief references to S.D.=s testimony in closing arguments that covered twelve pages of the reporter=s record.

We do not believe S.D.=s testimony played a significant role in appellant=s conviction nor had a substantial and injurious effect or influence on the jury=s verdict.  See King, 953 S.W.2d at 271.  Therefore, we conclude the error was harmless.

We overrule appellant=s issues one and two.  Having concluded admission of the evidence was harmless error, we need not address appellant=s issue three, in which he challenges admissibility of the evidence under Texas Rule of Evidence 403.

C. Issues Four through Six:  S.D.=s Identification of Appellant

In issue four, appellant argues the trial court erred in denying his motion to suppress S.D.=s identification of appellant as the person who indecently exposed himself to S.D. In issues five and six, respectively, he argues S.D.=s identification of him denied him his right to due process under the federal constitution and his right to due course of law under the state constitution. Appellant does not present a separate analysis under the state constitution and does not argue the state constitution affords him more protection than the federal constitution.  See Black v. State, 26 S.W.3d 895, 896 n.4 (Tex. Crim. App. 2000) (declining to address appellant=s state constitutional argument when appellant offered no reason for construing Texas Constitution as conferring greater protection in area of law at issue than the federal constitution).

In responding to appellant=s issues one through three, we held evidence of the extraneous offense against S.D. was inadmissible under Texas Rule of Evidence 404(b), but admission of the testimony was harmless under Texas Rule of Appellate Procedure 44.2(b), dealing with nonconstitutional error.  Appellant, however, argues the rule 44.2(a) standard for constitutional error applies to analysis of his identification issues.  We therefore briefly address the identification issues and conclude that the factors surrounding S.D.=s identification of appellant do not provide an independent ground for excluding the evidence and therefore an additional harmless error analysis is unnecessary.

Appellant complains the photographic display presented to S.D. was impermissibly suggestive because appellant=s photo was the only one with closed eyes and a smile.  He then argues the impermissibly suggestive out-of-court procedure tainted S.D.=s in-court identification.  “An in‑court identification is inadmissible when it has been tainted by an impermissibly suggestive pretrial photographic identification.  The test is whether, considering the totality of the circumstances, ‘the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’”  Loserth v. State, 963 S.W.2d 770, 771B72 (Tex. Crim. App. 1998) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968)).

Even were we to assume appellant=s facial expression rendered the display impermissibly suggestive, the totality of the circumstances in the present case does not give rise to a very substantial likelihood of irreparable misidentification.^[8]  The relevant circumstances are (1) S.D.=s opportunity to view appellant at the time of the offense; (2) S.D.=s degree of attention; (3) the accuracy of S.D.=s prior description, if any, of appellant; (4) the level of S.D.=s certainty demonstrated in selecting appellant=s photograph; and (5) the length of time between the offense and S.D.=s being shown the photographic display.  See Loserth, 963 S.W.2d at 772 (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972)).

Four of the five factors weigh in favor of admissibility.^[9]  Regarding her opportunity to view appellant, S.D. testified she first saw appellant while she was rollerblading to her friend=s house in the afternoon on February 21, 2001.  It was light outside when she saw a black truck pulled up next to her at a stop sign.  Regarding her degree of attention, S.D. testified she got a good look at the man driving the truck, and, on cross examination at trial, she described what he was wearing that day.  She was on the sidewalk when the truck stopped, and she saw a man in the truck with his hand on his genitals moving his hand up and down.  She later identified appellant in a photo spread as the man she saw that day.  Regarding her level of certainty, S.D. testified she was sure the photo she picked was the  man in the truck because she remembered him, not because the man in the photo was smiling or had his eyes closed.^[10]  Finally, regarding the length of time between the incident and her identification, S.D. testified the photo spread was presented to her approximately a month and a half after she witnessed the incident.

All factors indicate a high degree of reliability of the identification made by S.D.  The only factor we are unable to examine is the accuracy of a prior description given by S.D.  S.D. did not give the police a description of the man she saw on February 21, 2001.  She described only the truck she saw.^[11]

Concluding the totality of the circumstances in the present case did not give rise to a very substantial likelihood of irreparable misidentification, we overrule appellant=s issues four through six.

D.  Issues Seven through Nine: Lack of Instructions regarding Probation^[12]

In issue seven, appellant contends the trial court erred when it did not supplement the jury charge in response to the jury=s question about residence restrictions associated with a probated sentence.  In issues eight and nine, respectively, appellant argues the trial court=s refusal to include applicable conditions of probation (community supervision) in the charge denied him his right to due process under the federal constitution and his right to due course of law and a fair trial under the state constitution.^[13]

The matter of probation conditions arose initially during voir dire when the trial court, the Honorable Joan Huffman, presiding, was explaining how the jury would be assessing punishment.  At that point Judge Huffman stated, “What will happen in the law that I give you, I=ll give you a little bit of basic information about conditions of probation that could be assessed if a Defendant were to receive probation . . . .  So, you’ll get a little bit of information about what probation would mean, you=ll get a little bit of information about what a prison sentence would mean.”

During the punishment phase, Harris County Probation Officer Glenn Loethen testified for the defense.  Among other things, he explained the mandatory registration process for sex offenders on probation.  He also read the condition describing the “child safety zone,” under which a probationer is not to go within 100 yards of premises where children commonly gather and is not to supervise, or participate in, programs involving persons under 17 years of age.

Immediately before closing arguments at the punishment phase, the following interaction occurred between defense counsel and the trial court, the Honorable Robert D. Jones, presiding:

THE COURT:  All right.  Do you have any objection to the charge?

MS. WEBB [defense counsel]: I do, Your Honor.

Judge, with regard to the charge -- all three charges are the same, Your Honor.  But on page 2, it gives general conditions of probation.  It lists them.  I would like, in addition to those, those included under several different sections under the B

THE COURT:  First place, the Court is not required to give any of these conditions.  If you want me to take them all out, I=ll take them all out.  I=m not going down and go -- what=s going to happen, because I don=t know.

So, do you want me to take them out; or do you want to add some?

MS. WEBB:    I would like to add some.

THE COURT:  I=ll take them all out.

MS. WEBB:    May I read them for the record, what I=m requesting?

THE COURT:  You may.

MS. WEBB:  The Defense proposes on page 2 to add No. 10, which is prescribed under Section 6202(a). And that is that a person who has a reportable conviction, which a conviction of an offense of indecency with a child is, is required to register as a sex offender as a condition of parole, release of mandatory supervision or community supervision; that the Defendant shall register with the applicable law enforcement agency.

My second request, and I would request that it be Request No. 11, is under Section 4212, Section 13(b), that addresses when Defendants are placed on community supervision for sexual offenses against children; that if placed on community supervision for a sexual offense, that the Judge shall -- it=s not permissible -- shall -- I mean, not negotiable -- shall establish a child safety zone applicable to the Defendant by requiring as a condition of community supervision that the Defendant did not, A, supervise or participate in any program; that includes as participants or recipients, persons who are 17 years of age or younger, and that regularly provides athletic, civic, or cultural activities; or, B, go in, on or within a distance specified by the Judge of a premises where children commonly gather, including a school, a daycare facility, playground, public or private youth center, public swimming pool or video arcade facility; and attend psychological counseling sessions for sex offenders with an individual or organization which provides sex offender treatment or counseling as specified by or approved by the Judge or the Community Supervision and Corrections Department officer supervising the Defendant.

That would be my request for section -- additional No. 11, Judge.

For No. 12, the Defense requests, under 4212, Section 14, that if a person receives probation and is convicted of an offense, of which indecency with a child is included, that the Court may require as a condition of probation that the Defendant not directly communicate with the victim of the offense or go near a residence, school, or other location, as specifically described in the copy of the terms and conditions, frequented by the victim.

From that -- from Section 14, Subsection B.  The Court may require the probationer to attend psychological counseling sessions at the direction of the probation officer and may require the probationer to pay all or part of the reasonable fees and necessary costs incurred by the victim for psychological counseling made necessary by the offense upon the finding that the probationer is financially able to make the payment.  Any payments ordered by this subsection may not extend past one year from the date of the order.

And those -- that concludes, Judge, my request to be included on page 2.

THE COURT:  That will be denied.

All conditions will be taken out.

Anything else?

MS. WEBB:  No, Your Honor.

You=re punishing me for asking for the rest?

THE COURT:  Excuse me?

MS. WEBB:  You=re punishing me -- I mean, my client for asking for the additional conditions.

THE COURT:  Counsel, I=ve ruled.  Don=t argue with the Court. The Court has ruled.  As you may well know, the law is I am not required to give the conditions of probation.

MS. WEBB:  Then may I have a corrected copy of the charge, Judge, so that I can review it?

THE COURT:  Yes, ma=am.  I=m sorry.  Certainly after we get a new charge, you=ll have an opportunity to review it.

Court will take a short recess.

                                                     (Recess taken.)

THE COURT:  We now have a new charge.

State have any objections?

MR. LARSON [prosecutor]:  No, Your Honor.

THE COURT:  What about the Defense?

MS. WEBB:  Only other thing is we would like the community supervision conditions that were included in the first set of charges that we got.

THE COURT:  And do you have any authority that requires the Court to give such instructions?

MS. WEBB:  I don=t, Judge, but you eradicated it without an objection from the State.

So, for the purposes of the record, may I introduce the first version of the charge we saw as 8-A 1,2, and 3, just for the record, Judge.

THE COURT:  Thank you.  Your objection will be overruled.

The trial court then called the jury back to the courtroom and read the punishment phase charge.  The charge indicated the jury could recommend community supervision if the punishment it assessed did not exceed ten years.  The charge also defined community supervision as “the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the Court for a specified period during which a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part.” Finally the charge indicated if the jury recommended probation, it “shall be granted by the Court.” During deliberations, the jury sent out a note stating, “We request information on residence restriction associated w/probation sentence,” to which the trial court responded, “Read the charge.”

A trial court is not required to submit the statutory terms of probation in the jury charge on punishment.  See Cortez v. State, 955 S.W.2d 382, 384 (Tex. App.CSan Antonio 1997, no pet.); McNamara v. State, 900 S.W.2d 466, 467B68 (Tex. App.CFort Worth 1995, no pet.); see also Yarbrough v. State, 779 S.W.2d 844, 845 (Tex. Crim. App.1989) (per curiam) (dismissing petition as improvidently granted and expressly overruling Brass v. State, 643 S.W.2d 443 (Tex. App.CHouston [14th Dist.] 1982, pet. ref=d), which had required inclusion of probation terms in the jury charge).  It was not error for the trial court to refuse to do so in the initial charge to the jury.  See McNamara, 900 S.W.2d at 468.

Appellant, however, points to the jury=s question and argues the trial court erred when it did not supplement the charge at that point.  In support, he cites Herrera v. State, 848 S.W.2d 244 (Tex. App.CSan Antonio 1993, no pet.).  In Herrera, the initial charge did not provide a definition of probation and did not list any possible probationary conditions.  Id. at 247.  During deliberations, the jury sent a note to the trial court asking, “Judge, What exactly is the meaning of probation?  What happens to someone who is placed on probation?”  Id.  The trial court responded in writing, “You have all the law the Court can give you. Please continue your deliberations.” Id.  The defendant objected to the trial court=s response.  Id. at 248.

With virtually no analysis, the court of appeals concluded the trial court erred.  Id. at 247.  Given the defendant=s objection in the trial court, the court of appeals applied a harm analysis which required reversal in the presence of any harm.  Id. at 248 (citing Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)).  The court concluded:

The jury was given the option of granting probation.  The jury, however, was denied instruction regarding probation when it requested such instruction.  Therefore, the jury was not equipped with all the information it needed to properly consider her application for probation.  The jury denied probation and sentenced the defendant to jail.  Some harm resulted when the court refused to supplement the punishment jury charge with a definition of probation.

We emphasize that the omission of either a definition of probation or conditions of probation from the jury charge is not fundamental error. See Yarbrough v. State, 742 S.W.2d 62 (Tex. App.CDallas 1987), review dismissed, 779 S.W.2d 844, 845 (Tex. Crim. App. 1989); Henderson v. State, 617 S.W.2d 697, 700 (Tex. Crim. App. 1981).  However, after the jury asked in essence, “What is probation?” it was error for the trial judge not to supplement the charge with instruction regarding probation when the charge was devoid of any such instruction.  At minimum, the court should have given the jury the statutory definition of probation found at Tex. Code Crim. Proc. Ann. art. 42.12, ' 2(2) (Vernon Supp. 1993).  Alternatively, the court could have enumerated the possible probationary terms and conditions.

Id.

San Antonio is the only court to cite Herrera in a published opinion.  See Cortez, 955 S.W.2d at 384.  No court has relied on Herrera to reverse, and we decline to do so here for at least three reasons.

First, Herrera arguably conflicts with Yarbrough to the extent Yarbrough indicates there is no requirement to include conditions of probation in the charge.  See Yarbrough, 779 S.W.2d at 845.

Second, unlike the situation in Herrera, there is nothing in the record in the present case to indicate appellant objected to the court=s response to the jury=s question.  See Talley v. State, 909 S.W.2d 233, 235 (Tex. App.CTexarkana, 1995, pet. ref=d) (holding claim of error in trial court=s response to jury=s question not preserved when defendant did not object to response).

Third, even if appellant=s objection to the initial charge somehow preserved his claim of error in the trial court=s subsequent response to the jury=s question, appellant has not shown harm in the present case. Unlike Herrera, the jury in the present case received a definition of “community supervision.”  In addition, Officer Loethen testified for the defense in the punishment phase, explaining the mandatory registration process for sex offenders on probation and reading the condition of probation describing the “child safety zone.”

We overrule issues seven through nine.

We affirm the judgment of the trial court.

/s/        John S. Anderson

Justice

Judgment rendered and Opinion filed May 29, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  S.W. and A.G. testified they saw him pull in and out of driveways.  S.G. testified he drove down the street, but did not testify he pulled into any driveways. Appellant admitted in his testimony to pulling into one driveway to turn around.

^[2]  Montgomery, however, did not think appellant was driving in an evasive manner.  Montgomery testified he thought the truck was traveling at a normal rate of speed or slower.

^[3]  Additionally, appellant’s ex-wife and sister testified he never wears shorts.

^[4]  S.D.’s description of the truck was slightly inconsistent with the description Huetwohl and Montgomery gave of appellant=s truck.  S.D. testified she remembered the truck was black, with the word “Sport” written on it, and it had a red stripe.  Huetwohl and Montgomery testified appellant’s truck was black, with the word “Edge” written on it in red.

^[5]  Because we have concluded intent was not a disputed element, which extraneous evidence would be admissible to prove, the State’s argument regarding the doctrine of chances, which also relates to the element of intent, fails.

^[6]  The expert testified the defendant=s lifestyle was inconsistent with the lifestyle of an exhibitionist.  He also testified the actions described by the victims were inconsistent with actions of an exhibitionist.

^[7]  But see Creekmore v. State, 860 S.W.2d 880, 883B84 (Tex. App.CSan Antonio 1993, pet. ref’d) (upholding admission of third-party extraneous offense evidence after defendant’s expert testified defendant did not fit profile of an abuser and stated defendant told her he had never sexually molested anyone); Townsend v. State, 776 S.W.2d 316, 318 (Tex. App.CHouston [1st Dist.] 1989, pet. ref=d) (concluding defendant, through his own testimony and that of expert, “opened door” to admission of third-party extraneous offense evidence in rebuttal).  The Wheeler court cited Townsend without disapproving of the holding.  See Wheeler v. State, 67 S.W.3d 879, 885 n.12 (Tex. Crim. App. 2002).

^[8]  At least two federal circuit courts have held that a photographic display was not impermissibly suggestive despite the fact the defendant=s photograph was the only one with the subject=s eyes closed.  See United States v. Burdeau, 168 F.3d 352, 357B58 (9th Cir. 1999) (holding array with defendant=s photograph in center of array, darker than others, and showing subject with eyes closed not impermissibly suggestive); United States v. Sanchez, 24 F.3d 1259, 1261, 1263 (10th Cir. 1994) (holding photographic array not impermissibly suggestive despite several irregularities including fact appellant was only person with eyes closed).

^[9]  Without objection from the defense, the State during S.D.’s trial testimony, raised the issue of  S.D.’s selection of appellant’s photograph from the array, and we have reviewed S.D.’s trial testimony as well as that elicited during the hearing on the admissibility of the evidence.  See Webb v. State, 760 S.W.2d 263, 272 & n.13 (Tex. Crim. App. 1988) (reviewing evidence presented both at pretrial hearing and adduced at trial, to determine whether trial court abused its discretion permitting in-court identification, after pretrial identification procedure was challenged as unnecessarily suggestive and conducive to mistaken identification).

^[10]  See Stevens v. Maloney, 32 F. Supp. 2d 478, 482 (D. Mass 1998) (stating witness’s testimony she was not relying on distinctive feature considerably neutralizes suggestiveness of display).

^[11]  S.D. described the truck as a black truck with a small red line and the word “Sport” written on it.  This description is not an exact match to the appellant=s truck. However, it is not completely inconsistent either.

^[12]  The terms “community supervision” and “probation” share the same meaning and are generally  used interchangeably.  Prevato v. State, 77 S.W.3d 317, 317 n.1 (Tex. App.CHouston [14th Dist.] 2002, no pet.).

^[13]  As was the case with issues four through six, appellant does not present a separate analysis under the state constitution and does not argue the state constitution affords him more protection than the federal constitution.  See Black v. State, 26 S.W.3d 895, 896 n.4 (Tex. Crim. App. 2000) (declining to address appellant=s state constitutional argument when offered no reason for construing Texas Constitution as conferring greater protection in area of law at issue than the federal constitution).