Julio Cesar Soto-Galvan v. the State of Texas

AFFIRMED and Opinion Filed July 25, 2023
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00467-CR
JULIO CESAR SOTO-GALVAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th District Court
Hunt County, Texas
Trial Court Cause No. 32930CR
MEMORANDUM OPINION
Before Justices Molberg, Carlyle, and Smith
Opinion by Justice Carlyle
Appellant complains the trial court erred by including extraneous act
instructions in the jury charges during both phases of this sexual assault of a child
case. See TEX. CODE CRIM. PROC. arts. 36.14; 37.07, § 3(b). We affirm in this
memorandum opinion. See TEX. R. APP. P. 47.4.
Our first duty in analyzing a jury-charge issue is to decide whether error exists.
Ngo v. State, 175 S.W.3d 739, 743 (Tex. Crim. App. 2005) (en banc). Regarding the
charge at the guilt phase, the State gave appellant pretrial notice that it would
introduce evidence from the date of the offense regarding “marijuana/drug use and
distribution” at trial. See TEX. R. EVID. 404(b)(2). The complaining witness testified
at trial that appellant admitted possessing marijuana during the party where they met
when he initiated contact with her late in the evening of the night of the party. She
also testified appellant asked her whether he had given his weed to her while at the
party, and said “we had known that he was a drug addict.” Appellant did not object,
nor did he request a limiting instruction at the time the evidence came in, and thus
the trial court was not obligated to give the limiting instruction. See TEX. R. EVID.
105; Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007). Appellant does
not now, nor did he at trial, argue that he strategically failed to object or to request
the limiting instruction. See Delgado, 235 S.W.3d at 250. He made no objection to
the jury charge.
The limiting instruction correctly informed jurors of the appropriate use of the
testimony. It did not specifically refer to the marijuana evidence but only generally
to “evidence of extraneous crimes or bad acts other than the one charged in the
indictment in this case.” Trial counsel’s strategy was to concede guilt and focus on
the punishment phase of this trial. We reject the premise of appellant’s argument,
that it was error for the court to include the instruction, because there was evidence
of extraneous offenses or bad acts, and do not consider egregious harm. See Ngo,
175 S.W.3d at 743.
At punishment, the court included a similar instruction regarding extraneous
offenses or bad acts. See TEX. CODE CRIM. PROC. art. 37.07, §§ 3(a)(1), (b).
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Appellant admitted during punishment that he had a reputation in his family as a
drug addict and that he was using drugs and alcohol around the time of the offense.
There was evidence of appellant’s multiple rule violations and write-ups while he
was in jail awaiting trial. Counsel lodged no objection to the punishment charge, and
in any event, because there was evidence at punishment of extraneous offenses or
other bad acts, the punishment charge contained no error. See Smith v. State, 577
S.W.3d 548, 550–51 (Tex. Crim. App. 2019).
We affirm the judgment of the trial court.
/Cory L. Carlyle/
210467f.u05 CORY L. CARLYLE
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JULIO CESAR SOTO-GALVAN, On Appeal from the 354th District
Appellant Court, Hunt County, Texas
Trial Court Cause No. 32930CR.
No. 05-21-00467-CR V. Opinion delivered by Justice Carlyle.
Justices Molberg and Smith
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 25th day of July, 2023.
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