Affirmed; Opinion Filed October 4, 2018.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-16-01046-CR

                               JOE SANTILLANA, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 1
                                   Dallas County, Texas
                             Trial Court Cause No. F1412813

                             MEMORANDUM OPINION
                        Before Justices Stoddart, Whitehill, and Boatright
                                   Opinion by Justice Stoddart
       A jury convicted Joe Alejandra Santillana of aggravated sexual assault of a child and

sentenced him to sixty years’ incarceration. In two issues, appellant argues the trial court abused

its discretion by allowing the State to introduce evidence pursuant to article 38.37 of the Texas

Code of Criminal Procedure and the jury instructions were improper. We affirm the trial court’s

judgment.

       In his first issue, appellant argues the trial court abused its discretion by allowing the State

to introduce evidence to the jury during the guilt/innocence phase of trial under article 38.37 of

the code of criminal procedure because the evidence did not comply with the statutory

requirements.   See TEX. CODE CRIM. PROC. ANN. art. 38.37. Appellant was charged with

aggravated sexual assault against B.T., a child. Before trial began, the State requested a hearing
about evidence it sought to offer pursuant to article 38.37. The evidence related to uncharged

instances of sexual misconduct by appellant with B.T. and two other girls, A.S. (12 years old at

the time of trial) and M.S. (14 years old at the time of trial). During the hearing, which was outside

of the jury’s presence, A.S. and M.S. testified about appellant’s acts against them.        B.T. also

testified about uncharged conduct.        Following the testimony, appellant argued B.T. lacked

credibility and the witnesses’ testimony was more prejudicial than probative. He did not assert the

evidence did not comply with the statutory requirements of article 38.37. The trial court permitted

the witnesses to testify in front of the jury.

        On appeal, appellant asserts the testimony of A.S. did not meet the requirements of article

38.37, section 2, and the testimony of A.S. and M.S. was inadmissible under evidentiary rule

404(b). The objections appellant made in the trial court do not comport with the complaints he

now raises on appeal. To preserve error, a party must object and state the ground for the objection

with enough specificity to make the trial judge aware of the complaint, unless the specific grounds

were apparent from the context. TEX. R. APP. P. 33.1(a)(1). The objection must be sufficiently

clear to give the judge an opportunity to address and, if necessary, correct any error. Thomas v.

State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). If a trial objection does not comport with the

argument on appeal, error has not been preserved. Id.; see also Cope v. State, No. 05-17-00515-

CR, 2018 WL 2926752, at *2 (Tex. App.—Dallas June 7, 2018, no pet.) (applying rule 33.1 to

evidence admitted under article 38.37). Appellant’s objections related to the testimony about

which he now complains were limited to those made at the hearing and concerned credibility and

whether the evidence was more prejudicial than probative. Appellant did not inform the trial judge

of the complaints he now makes on appeal. Accordingly, we conclude appellant has not preserved

this issue for our review. We overrule appellant’s first issue.




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       In his second issue, appellant argues the trial court failed to properly charge the jury on the

law of the case pertaining to sections 1 and 2 of article 38.37, which egregiously harmed him.

Appellant concedes he did not object to the charge at trial.

       We review alleged jury charge error in two steps. Kirsch v. State, 357 S.W.3d 645, 649

(Tex. Crim. App. 2012). First, we determine whether error exists in the charge. Id. Second, if

charge error exists, we review the record to determine whether the error caused sufficient harm to

warrant reversal. See id. Where, as here, the defendant did not raise a timely objection to the jury

instructions, “reversal is required only if the error was fundamental in the sense that it was so

egregious and created such harm that the defendant was deprived of a fair and impartial trial.”

Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). Error is egregiously harmful if

it “affect[s] the very basis of the case, deprive[s] the defendant of a valuable right, or vitally

affect[s] a defensive theory.” Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013).

Egregious harm is a “high and difficult standard which must be borne out by the trial record.”

Young v. State, 283 S.W.3d 854, 880 (Tex. Crim. App. 2009). The defendant must have suffered

“actual rather than theoretical harm.” Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).

       The jury charge states:

               You are instructed that if there is any testimony before you in this case
       regarding the defendant having committed other crimes, wrongs or bad acts against
       the complaining witness in the indictment in this case or other witnesses not in the
       indictment, that evidence was admitted for the purpose of aiding you, if it does, in
       determining the state of mind of the defendant and the child and or the previous and
       subsequent relationship between the defendant and the child. You cannot consider
       such testimony for any purpose unless you find and believe beyond a reasonable
       doubt that the defendant committed such other offenses, if any were committed.
       Then, you may only consider such evidence to assist you, if it does as described
       above or, in determining motive, opportunity, intent, preparation, plan, knowledge,
       identity, absence of mistake, lack of accident, character of the defendant or acts
       performed in conformity with the character of the defendant.




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Appellant asserts this charge improperly allowed the jury to consider evidence admitted under

article 38.37 for all purposes, including proof of character and proof of the offense charged through

conformity with that proven character.

           The Austin Court of Appeals considered a similar argument made to a similar provision in

a jury charge in Tolbert v. State, No. 03-16-00505-CR, 2017 WL 6759145, at *9 (Tex. App.—

Austin Dec. 22, 2017, no pet.) (mem. op., not designated for publication).1 In Tolbert, the court

concluded that because the complained-of language included instructions consistent with the

statutory provisions, the charge was not erroneous. See id. As in Tolbert, the extraneous offense

evidence admitted against appellant was pursuant to article 38.37, sections 1 and 2. The extraneous

offenses committed against B.T. (i.e., those offenses not alleged in the indictment) were offered

and admitted pursuant to section 1(b), which provides that “evidence of other crimes, wrongs, or

acts committed by the defendant against the child who is the victim of the alleged offense shall be

admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and

the child; and (2) the previous and subsequent relationship between the defendant and the child.”

TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b). The extraneous offenses committed against A.S.

and M.S. were admitted pursuant to section 2(b), which allows evidence of a defendant’s

extraneous sexual offenses committed against other children to be admitted “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.” See id. art. 38.37, § (2)(b). The trial court’s



   1
       The jury instruction in Tolbert stated:
                 You are instructed that if there is any testimony before you in this case regarding the Defendant's 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, knowledge, motive, preparation or plan
           of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, or to rebut
           the defensive theory of the defendant, if any, or for its bearing on the state of mind of the defendant and the child or the
           previous and subsequent relationship between the defendant and the child and for any bearing the evidence has on relevant
           matters, including the character of the defendant and the acts performed in conformity with the character of the defendant.
   Tolbert, 2017 WL 6759145, at *8.

                                                                        –4–
instruction regarding consideration of the extraneous offense evidence included instructions

consistent with these statutory provisions. See Tolbert, 2017 WL 6759145, at *9. Because the

instruction contained language instructing the jury that it could consider the extraneous offense

evidence for the purposes set forth in article 38.37, we conclude that the jury charge was not

erroneous. Id.

       Even assuming the complained-of language does constitute error in the jury charge, we

cannot conclude it caused appellant egregious harm. As noted above, the jury was instructed it

could consider the extraneous offense evidence for the appropriate purposes set forth in article

38.37. We presume the jurors understood and followed the court’s instructions in the jury charge

absent evidence to the contrary. Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim. App. 2002).

Additionally, the extraneous offense evidence in this case was admitted for all purposes because

appellant did not request a limiting instruction when the evidence was admitted. “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.” Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008); Tolbert, 2017 WL

6759145, at *9. When the State introduced evidence of appellant’s extraneous sexual abuse

offenses, appellant did not ask the trial court to instruct the jury that it could consider the evidence

of the extraneous sexual offenses for only limited purposes, including the purposes set forth in

article 38.37. Thus, the evidence regarding the offenses was admitted for all purposes. See

Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007) (“Once evidence has been admitted

without a limiting instruction, it is part of the general evidence and may be used for all purposes.”);

Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001) (“Because appellant did not

request a limiting instruction at the first opportunity, the evidence was admitted for all purposes.”).

Thus, the jury was permitted to consider it for any purpose. We conclude that the jury charge,

                                                  –5–
even if erroneous as appellant suggests, did not cause appellant egregious harm. We overrule

appellant’s second issue.

       We affirm the trial court’s judgment.




                                                 /Craig Stoddart/
                                                 CRAIG STODDART
                                                 JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
161046F.U05




                                               –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 JOE SANTILLANA, Appellant                         On Appeal from the Criminal District Court
                                                   No. 1, Dallas County, Texas
 No. 05-16-01046-CR         V.                     Trial Court Cause No. F1412813.
                                                   Opinion delivered by Justice Stoddart.
 THE STATE OF TEXAS, Appellee                      Justices Whitehill and Boatright
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 4th day of October, 2018.




                                             –7–
