
COURT OF APPEALS
SECOND 
DISTRICT OF TEXAS
FORT WORTH
 
NO. 2-00-241-CR
  
  
MAURICE BLUITT                                                                  APPELLANT
  
V.
  
THE STATE OF TEXAS                                                                  STATE
  
  
------------
 
FROM THE 372ND 
DISTRICT COURT OF TARRANT COUNTY
 
------------
 
OPINION ON REMAND
 
------------
Procedural Background
        On 
original submission to this court, this court en banc reversed and 
remanded appellant Maurice Bluitt’s sentence of twenty years’ confinement 
and $5,000 fine, imposed by the jury for his conviction for indecency with a 
child by contact.  Appellant raised one issue on appeal: did the trial 
court err when it failed to give a reasonable doubt instruction regarding the 
extraneous offenses after appellant’s counsel specifically stated on the 
record that he had no objections to the charge.  Based on the Texas Court 
of Criminal Appeals opinion in Huizar v. State, 12 S.W.3d 479 (Tex. Crim. 
App. 2000) (op. on reh’g), we originally determined there was trial court 
error in the court’s charge despite appellant’s affirmative statement of 
“none” as to any further charge objections.  See Bluitt v. State, 
70 S.W.3d 901, 905 (Tex. App.—Fort Worth 2002), rev’d, 137 S.W.3d 51 
(Tex. Crim. App. 2004).  We reversed and remanded for a new trial on 
punishment after conducting “the article 36.19 and Almanza egregious 
harm analysis.”  Bluitt, 70 S.W.3d at 905; see also Tex. Code Crim. Proc. Ann. art. 36.19 
(Vernon 1981); Almanza v. State, 686 S.W.2d 157, 171 (Tex. 1985) (op. on 
reh’g). The State petitioned the court of criminal appeals for discretionary 
review on three grounds:
  
1) the court of appeals erroneously held that the Code of Criminal Procedure, 
art. 37.07, § 3(a)(1), requires a defendant's prior criminal convictions (as 
opposed to other offenses or bad acts committed by the defendant) that are 
introduced into evidence at the punishment phase to be proved beyond a 
reasonable doubt; 2) the court of appeals misapplied the standard for egregious 
harm under Almanza; and 3) the court of appeals erroneously ruled that, 
even though appellant affirmatively stated to the trial court that he had no 
objection to the jury charge, appellant was nevertheless entitled to appellate 
review of the alleged charge error under Almanza.
  
Bluitt, 137 S.W.3d at 53.
        First, 
the court of criminal appeals addressed the State’s third ground regarding its 
claim that appellant had waived his right to object to jury charge error on 
appeal because he told the court that he had no objections to the proposed 
punishment jury instructions.  Id.  The court repeated its well 
known case law that “when there is jury-charge error, whether objected to or 
not objected to, the standard for assessing harm is controlled by Almanza.”  
Id.; see Almanza, 686 S.W.2d at 171.  The court reasoned that because 
there are only two possible consequences of error in the charge – two types of 
harm analysis – and both are determined by whether a timely objection has been 
made, an affirmative denial of objection, like the one in this case, must be 
treated like a failure to object.  Id.  The court continued, 
noting that an appellant may raise such unobjected-to charge error on appeal but 
may only obtain a reversal if the error resulted in egregious harm.  Id. 
 Thus, the court of criminal appeals agreed with our conclusion that 
appellant may challenge a jury charge omission on appeal even when the appellant 
had told the trial court that he had no further objections.  See id.  
The court overruled the State’s third ground and turned to the State’s first 
ground for review: whether the trial court erred in failing to instruct the jury 
that extraneous offenses must be proved beyond a reasonable doubt.1  Id. at 53-54.
        In 
reviewing the first issue before it, the court of criminal appeals turned to 
article 37.07, section three, of the code of criminal procedure, which describes 
some of the types of evidence that the State may introduce at punishment: the 
defendant’s prior criminal record, the defendant’s general reputation, the 
defendant’s character, an opinion of the defendant’s reputation, the 
circumstances surrounding the subject offense and extraneous offenses, and bad 
acts that are shown beyond a reasonable doubt to have been committed by the 
defendant or for which he could be held criminally responsible.  Tex. Code Crim. Proc. Ann. art. 37.07, 
§ 3 (Vernon Supp. 2004-05).  The court of criminal appeals presumed that 
since a defendant’s criminal record was not grouped with the unadjudicated 
offenses and bad acts, the legislature must have intended different burdens of 
proof to attach to extraneous offenses as opposed to unadjudicated offenses and 
bad acts.  Bluitt, 137 S.W.3d at 54.  Because the court of 
criminal appeals concluded that a prior conviction is itself proof of a finding 
of guilt beyond a reasonable doubt (presuming proper prove-up), there is no 
justification for requiring another jury to make the same finding again.  Id.  
Thus, the court concluded that “[g]iving such an instruction [would be] a 
useless act,” sustained the State’s first ground, and remanded the case to 
this court for further proceedings in conformity with their opinion and to 
presumably address this ground that the State had previously conceded.  Id.  
We will first briefly review the facts of the case.
Factual Summary
        Appellant 
was charged with one count of indecency with a child by contact.  See
Tex. Penal Code Ann. § 
21.11(a)(1) (Vernon 2003).  He pled not guilty and the case was tried to a 
jury that found him guilty.
        During 
guilt-innocence, appellant testified on his own behalf, denying he had 
inappropriately touched the injured party, who was his girlfriend’s 
eight-year-old daughter.  Appellant testified that he had disciplined her 
with an open hand and that she was angry with him for that.
        At 
the guilt-innocence phase of the trial, the State introduced evidence of four 
prior convictions when it cross-examined him on: 1) a 1998 conviction for 
assault-bodily injury of a family member; 2) a 1992 conviction for 
assault-domestic violence out of Denver County, Colorado; 3) a 1993 conviction 
for assault-domestic violence out of Denver County, Colorado; and 4) a 1982 
conviction for fraud out of Dallas County, Texas.
        At 
the punishment phase of the trial, the State reoffered all the evidence 
presented at guilt-innocence.  The State also presented evidence of 
appellant’s prior criminal record and introduced three exhibits showing four 
different convictions and their dispositions.  Exhibit four showed a 
conviction for kidnaping-sexual assault and an assault in 1998 out of Araphahoe 
County, Colorado; exhibit five showed a conviction for sexual assault in 1987 
out of Dallas County, Texas; and exhibit six showed a conviction for assault 
bodily injury of a family member out of Tarrant County, Texas in 1998.  The 
jury found appellant guilty and the trial court assessed his punishment at 
twenty years’ confinement with a $5,000 fine.
Issue on Remand
        In 
one issue, appellant challenges his sentence claiming that the trial court erred 
in failing to instruct the jury that it could consider evidence of extraneous 
offenses only if it believed beyond a reasonable doubt that appellant committed 
those offenses.  And because the issue of waiver has been addressed on 
petition for discretionary review, the only issue now before us on remand is 
whether there was trial court error under these facts.
Discussion
        Because 
appellant complains about the trial court’s failure to give a reasonable doubt 
instruction at punishment as to extraneous offenses only, we can only 
conclude that the trial court did not err, in light of the court of criminal 
appeals opinion in this same case.  See Bluitt, 137 S.W.3d at 
53.  For this reason, we need not conduct a harm analysis and conclude that 
appellant’s sole issue is overruled.  Because the trial court did not 
err, we affirm the trial court’s judgment.
  

 
                                                          TERRIE 
LIVINGSTON
                                                          JUSTICE
  
  
EN BANC
 
PUBLISH
 
DELIVERED: 
September 9, 2004


NOTES
1.  The court of criminal appeals 
also noted that this was the first time the State raised this issue having 
conceded in the Second Court of Appeals that the instruction was required and 
should have been given.  Id. at 53-54.
