                             In the
                        Court of Appeals
                Second Appellate District of Texas
                         at Fort Worth
                     ___________________________

                            No. 02-18-00005-CR
                       ___________________________

                    TIMOTHY LYN JARRARD, Appellant

                                       V.

                           THE STATE OF TEXAS




                   On Appeal from the 396th District Court
                          Tarrant County, Texas
                        Trial Court No. 1482908D


Before Gabriel and Birdwell, JJ.; and Lee Ann Dauphinot (Senior Justice, Retired,
                             Sitting by Assignment)
                 Memorandum Opinion by Justice Dauphinot
                           MEMORANDUM OPINION

      Appellant Timothy Lyn Jarrard was charged by indictment with five counts of

the first-degree felony offense of aggravated sexual assault of Tiffany Brown, a child

under the age of fourteen at the time of each offense alleged. 1 Appellant pleaded not

guilty to each count. The State abandoned count four of the indictment, and a jury

convicted Appellant of the remaining counts. The trial court assessed punishment at

35-years’ confinement in the Institutional Division of the Texas Department of

Criminal Justice for each count, and ordered that Appellant serve his sentences

concurrently. Appellant was eligible for probation.

      Appellant brings two points on appeal, arguing the trial court reversibly erred in

denying his motion to suppress a statement he made in 1993 and in failing to give the

jury a proper limiting instruction regarding extraneous offenses admitted pursuant to

rule 404(b). Because the trial court did not err in denying the motion to suppress or in

refusing to give the requested limiting instruction regarding the extraneous offenses,

we affirm the trial court’s judgment.

Brief Facts

      Appellant was a special education student with a significant speech

impediment, who did not graduate from high school until 1993 at the age of twenty.


      1
       See Tex. Penal Code § 22.021(a)(1)(B). To preserve the complainant’s and the
other children’s anonymity, we use pseudonyms. See McClendon v. State, 643 S.W.2d
936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).


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The record revealed a history of sexual abuse of young, elementary-school-age, female

relatives, Tiffany, Taylor, and Cameron. The abuse grew worse and more violent.

Eventually, in May 1993, there was a referral to CPS, which reported the abuse to

Detective Giardino of the Benbrook Police Department.

      Appellant was arrested at high school and taken to the police department to be

questioned by the police about a one-and-a-half-year-old sexual offense involving

Taylor, not this complainant Tiffany. Appellant wrote out a statement in 1993 when

he was still in high school and without advice of counsel. Appellant testified he

understood the significance of writing out his statement, but then he explained that he

really did not know what was going on. Detective Giardino, who took the statement,

testified he had advised Appellant of his rights, but he did not know of his cognitive

disabilities. At trial, Appellant moved to suppress the statement Appellant had given

to Detective Giardino, and the trial court overruled the motion. He was not

prosecuted for the offense involving Tiffany until 2016.

      When the Fort Worth Police Department formed a task force to re-examine

1,200 old child abuse cases that “weren’t handled right the first time,” Detective

Pawel Nabialek of the Fort Worth Police Department volunteered for the task force

because he “thought it was a shame that we didn’t do it right the first time.” In

October 2016, Detective Nabialek was assigned to Tiffany’s case. He looked for

Tiffany’s forensic interview but could not find it. In late 2016 or early 2017, he



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interviewed her, investigated the case, and submitted the case to the Tarrant County

District Attorney’s Office.

Admissibility of Appellant’s Statement

      In his first point on appeal, Appellant argues the trial court reversibly erred in

allowing the admission into evidence of his 1993 written statement to Detective

Giardino. He states clearly that the basis of his complaint is the overreaching conduct

of the police. Yet during the hearing on the admissibility of the statement, Appellant

elicited the following exchange:

      Q: Now, we’re not suggesting and you’re not suggesting that the
      detective beat you up or promised you anything in order to get you to
      give that statement, but you just really didn’t comprehend the
      seriousness of what was going on; is that correct?

      A: Yes.

Appellant carefully points out on appeal that “[t]he appellate court should keep in

mind that the extraneous offense information was already before the jury. Appellant’s

objection was simply aimed at the corroborating nature of that evidence by the

introduction of Appellant’s statement.”

      Appellant explains that Appellant’s mental disabilities should have been given

greater weight by the trial court. He argues that the evidence of mental disabilities was

sufficient to place into question the voluntariness of the 1993 statement.

      We have carefully examined the record. The degree of Appellant’s mental

disabilities is unclear from the record. In his testimony, Appellant denied his



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statement was involuntary. On appeal, Appellant complains, not of the jury’s being

allowed to consider evidence of the extraneous offense discussed in Appellant’s

statement, but of the fact that it corroborates the nature of the evidence already

before the jury. Applying the appropriate standard of review, we hold the trial court

did not err in overruling Appellant’s trial objection and admitting his statement into

evidence.2 We overrule Appellant’s first point on appeal.

Limiting Instruction

       In his second point on appeal, Appellant argues the trial court reversibly erred

by failing to include in the jury charge an appropriate limiting instruction regarding

use of his extraneous acts of misconduct. At trial, during the charge conference, he

asked that the State be ordered to specify the limited purpose for which the

extraneous acts had been offered and admitted. He did not request a limiting

instruction. The trial court denied Appellant’s request and gave a general 404(b) 3

instruction.




       2
        See Resendez v. State, 306 S.W.3d 308, 313–17 (Tex. Crim. App. 2009); see also
Johnson v. State, 263 S.W.3d 287, 289 (Tex. App.—Houston [1st Dist.] 2007, pet.
dism’d) (“The issue raised on appeal should comport with the objection made at trial,
and the trial judge should have an opportunity to rule on the issue, otherwise nothing
is present for appellate review.”).

       Tex. R. Evid. 404(b).
       3




                                           5
      If a trial court admits evidence for a limited purpose, the court must give the

jury a limiting instruction if requested to do so.4 “A failure to request a limiting

instruction at the time evidence is presented renders the evidence admissible for all

purposes and relieves the trial judge of any obligation to include a limiting instruction

in the jury charge.”5 In the case now before this court, Appellant requested no

limiting instruction when the evidence was first admitted. Consequently, the evidence

was admitted before the jury for all purposes.6 Nor did he ask for a limiting

instruction in the jury charge. He does not argue the jury charge was so defective as to

constitute fundamental error. 7

      Considering the record as a whole, and the issues actually raised at trial and in

Appellant’s brief, we overrule Appellant’s second point on appeal.

Sex-Offender Registration

      In a single cross-issue, the State argues that the trial court incorrectly failed to

order that Appellant submit to lifetime sex-offender registration and that this Court




      4
       Tex. R. Evid. 105(a).
      5
         Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008) (citing Hammock
v. State, 46 S.W.3d 889, 892–95 (Tex. Crim. App. 2001)).
      6
       See id.
      7
        Arteaga v. State, 521 S.W.3d 329, 338 (Tex. Crim. App. 2017) (citing Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).


                                           6
should modify the judgment with respect to count two of the indictment to reflect

that sex-offender-registration requirements apply.

      The State correctly argues Appellant’s convictions for aggravated sexual assault

of a child are “reportable convictions” for “sexually violent offenses” that require sex-

offender registration for life. 8 The judgments in the case now before this court are

therefore required to include a statement that the registration requirements apply.9

The judgment with respect to count two of the indictment incorrectly states that sex-

offender-registration requirements do not apply.

      As the State points out, an appellate court has the power to modify an incorrect

judgment when the record contains the information necessary to do so. 10 We,

therefore, sustain the State’s cross-issue on appeal and order the judgment on count

two be modified to require lifetime sex-offender registration.

Conclusion

      Having overruled both of Appellant’s points on appeal, and sustained the

State’s cross-issue, we affirm the trial court’s judgments on counts one, three, and five

and affirm the trial court’s judgment on count two as modified.


      8
       See Tex. Code Crim. Proc. Ann. arts. 62.001(5)(A), (6)(A); 62.051(a);
62.101(a)(1).
      9
       Id. art. 42.01, § 1(27).
      10
        Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—
Dallas 1991, pet. ref’d).


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                                 /s/ Lee Ann Dauphinot
                                 Lee Ann Dauphinot
                                 Justice

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

Delivered: August 28, 2019




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