Affirmed; Opinion Filed August 12, 2015.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-13-00883-CR

                               ROBERT GARRETT, Appellant

                                               V.

                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 265th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1052395-R

                             MEMORANDUM OPINION
                          Before Justices Lang, Stoddart, and Schenck
                                   Opinion by Justice Lang

       A jury convicted Robert Garrett of indecency with a child and assessed punishment at

nine years’ confinement and a $4000 fine. Garrett raises six issues on appeal. His first five

issues arise from what he claims is the erroneous admission, at the punishment stage of trial, of

State’s Exhibit 2, records concerning Garrett’s 1998 arrest in DeKalb County, Georgia for

“simple battery” and “interference with government property.”          In a sixth issue, Garrett

complains of the admission, at the guilt-innocence stage of trial, of extraneous offense testimony

that Garrett hit the complainant’s mother and brother. We affirm the trial court’s judgment.
                                       I. BACKGROUND

       The complainant is the daughter of Garrett’s ex-girlfriend. At the time Garrett and the

complainant’s mother began dating in 2006, the complainant was “like five [or] six” years old.

About a year later, while the complainant and her family were living with Garrett, he molested

the complainant. The complainant did not tell anyone, and Garrett molested her again. Garrett

molested the complainant at least twice more before the complainant finally told her mother in

early 2010.

       At trial, the complainant testified she did not immediately disclose the abuse to her

mother because she was scared of Garrett. Over objection by defense counsel, the complainant

said Garrett had hit her mother in the face, breaking her glasses, and had hit her brother.

       At punishment, complainant’s mother corroborated complainant’s testimony that Garrett

was violent and testified that he hit her several times during their relationship. Garrett did not

testify in his defense, but called his daughter from his first marriage, Prentice. Prentice testified

the complainant’s mother’s testimony was “shocking” and inconsistent with the father she knew.

Prentice testified Garrett worked hard and travelled often because of his work. He and her

mother were married twelve years, and she did not recall any violence between them.

       On cross-examination, the prosecutor asked Prentice if she remembered Garrett being

convicted of “simple battery” for physically assaulting her mother. Prentice testified she did not

know of the conviction. Then, the prosecutor submitted to Prentice State’s Exhibit 2. The

prosecutor asked Prentice if her parents lived together in 1998 in DeKalb County, Georgia and if

the documents in the exhibit had Garrett’s and her mother’s name on them and Garrett’s date of

birth. Based on her affirmative answers, the prosecutor asked Prentice if State’s Exhibit 2

“appeared to be a conviction for your dad against your mom.” Prentice replied, “I’m guessing

so,” at which point the prosecutor offered the exhibit into evidence. Defense counsel objected


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that the exhibit had not been “authenticated.” The trial court overruled that objection, and the

exhibit was admitted into evidence.

       The prosecutor published the exhibit to the jury, representing to the jury that it was the

record of a conviction for “simple battery” and probation. However, State’s Exhibit 2 actually

reflects that Garrett pled guilty to the “interference with government property” charge and the

charge for “simple battery” was dismissed. Then, Garrett was placed on deferred adjudication

probation. The true content of State’s Exhibit 2 was not brought to the attention of the trial court

or the jury. In closing argument, the prosecutor characterized Garrett as both a “child molester”

and “wife beater,” alluding to the “simple battery conviction” and testimony of Garrett’s violent

behavior towards the complainant’s mother.

                         II. EXTRANEOUS OFFENSE TESTIMONY

       We address first Garrett’s sixth issue which complains of the admission, at the guilt-

innocence stage, of the complainant’s testimony that Garrett was violent. The record reflects

that, in response to defense counsel’s objection to the complainant explaining why she was

scared of Garrett, the prosecutor stated the testimony was admissible under article 38.37 of the

Texas Code of Criminal Procedure because it “went to her state of mind and the relationship that

she had with [Garrett].” See TEX. CODE CRIM. PROC. ANN. art. 38.37 (West Supp. 2014). Garrett

asserts article 38.37 applies only to extraneous acts committed by the defendant against the

complainant and, because the extraneous acts of assault to which the complainant testified were

against her family members, the testimony was not admissible under article 38.37. Garrett

further asserts the testimony was inadmissible under Texas Rule of Evidence 404(b) which

generally prohibits the admission of extraneous offense evidence. See TEX. R. EVID. 404(b).

                           A. Applicable Law and Standard of Review

       Because a defendant is entitled to be tried for the charged offense only and not his

criminal propensities, evidence of extraneous acts or crimes committed by the defendant is
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generally inadmissible at the guilt-innocence stage of trial. See Moses v. State, 105 S.W.3d 622,

626 (Tex. Crim. App. 2003); see also TEX. R. EVID. 404(b)(1); Devoe v. State, 354 S.W.3d 457,

469 (Tex. Crim. App. 2011). However, such evidence may be admissible for purposes other than

character conformity.    Moses, 105 S.W.3d at 626; see also TEX. R. EVID. 404(b)(2). For

example, under article 38.37 of the Texas Code of Criminal Procedure, evidence of other crimes

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

admissible to show, among other matters, the defendant’s and child’s state of mind and any prior

or subsequent relationship between them. TEX. CODE CRIM. PROC. ANN. art. 38.37. Further,

under Texas Rule of Evidence 404(b)(2), evidence of extraneous offenses or acts may be

admissible to prove motive, identity, and the reason a sexual assault victim failed to report the

assault promptly. See TEX. R. EVID. 404(b); Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim.

App. 1983); Wilson v. State, 90 S.W.3d 391, 394 (Tex. App.—Dallas 2002, no pet.).

       An appellate court reviews a trial court’s decision to admit evidence for abuse of

discretion and will uphold the decision so long as it falls within the zone of reasonable

disagreement and is correct under any theory of law that finds support in the record. Devoe, 354

at 469. A decision that is erroneous will result in reversal of the trial court’s judgment only if,

upon a review of the entire record, the defendant was harmed, that is, only if the appellate court

has “grave doubt” that the outcome “was free from the substantial effect of the error.” See

Barshaw v. State, 342 S.W.3d 91, 93-94 (Tex. Crim. App. 2011); Alexander v. State, 740 S.W.2d

749, 765 (Tex. Crim. App. 1987).

                                  B. Application of Law to Facts

       Applying the appropriate standard, we conclude no abuse of discretion occurred in

allowing the complainant to testify Garrett had been violent towards her mother and brother.

Although Garrett is correct that article 38.37, upon which the State relied at trial, does not allow

the testimony, the testimony was admissible under rule of evidence 404(b). See TEX. R. EVID.
                                             –4–
404(b); Devoe, 354 S.W.2d at 469. The testimony was offered not to show character conformity,

but to show why the complainant delayed in telling her mother that Garrett had molested her.

See Brown, 657 S.W.2d at 119; Wilson, 90 S.W.3d at 394. The trial court’s ruling will be upheld

since it is correct under the law despite being different than the specific objection of the State.

See Devoe, 354 S.W.3d at 469. We decide Garrett’s sixth issue against him.

                                                     III. STATE’S EXHIBIT 2

           Now, we address issues one through five, which raise as error the admission of State’s

Exhibit 2 in the punishment phase.                               In his first issue, Garrett argues the prosecutor’s

misrepresentation of the content of the exhibit violated his right to due process.1 His second and

third issues assert his trial counsel’s representation was inadequate as counsel failed to object to

the prosecutor’s misrepresentation of the content of the exhibit, examine the exhibit when

offered as evidence, and investigate Garrett’s criminal history. In his fourth and fifth issues,

Garrett argues the exhibit should have been excluded because it was not “authenticated” or

“linked” to him. The focus of Garrett’s argument in these issues is on harm; that is, the jury

would have assessed a different punishment had the prosecutor not misrepresented the record,

trial counsel rendered effective assistance by properly objecting, and the exhibit been excluded.

                                                            A. Applicable Law

                                                               1. Due Process

           In the context of a due process violation stemming from the prosecutor’s use of false or

misleading evidence at the punishment phase of trial, harm is established upon “pro[of] beyond a

reasonable doubt that the error complained of . . . contribute[d] to the verdict obtained.” See Ex
     1
         Garrett also argues the prosecutor’s conduct violated his right to due course of law under the Texas Constitution. However, he fails to
argue the Texas due course of law provision provides greater protection than the federal due process clause, and the case upon which he relies,
Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011), involved a due process claim only. See Ghahremani, 332 S.W.3d at 477; see
also Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (defendant forfeited claim on appeal that state due course of law clause provided
more protection than federal due process clause by failing to raise claim at trial); Manns v. State, 122 S.W.3d 171, 192 n.97 (Tex. Crim. App.
2003) (analyzing claim that appellant improperly impeached with illegally obtained recorded statement solely under Fourth Amendment
jurisprudence; although appellant relied upon Texas Constitution at trial, on appeal he did not cite to that provision or explain how its protections
differ from the Fourth Amendment).



                                                                       –5–
parte Ghahremani, 332 S.W.3d 470, 477-78 (Tex. Crim. App. 2011). A due process claim, like

many others however, is not preserved for review on appeal unless it was raised at trial. See

TEX. R. APP. P. 33.1(a); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1985).

                             2. Authentication and Link of Records

       In the context of the erroneous admission of evidence at punishment, harm is established

if the record as a whole reflects a reasonable probability that the evidence might have affected

the punishment assessed. See Alexander, 740 S.W.2d at 765.

                               3. Ineffective Assistance of Counsel

       To obtain a reversal based on harm from counsel’s deficient performance at punishment,

an appellant must show that “a reasonable probability [exists] that, but for counsel’s

unprofessional errors, the result of the punishment hearing would have been different.” See

Andrews v. State, 159 S.W.3d 98, 101, 103 (Tex. Crim. App. 2005).

                                 B. Application of Law to Facts

       As to Garrett’s due process claim raised in his first issue, we conclude it was not

preserved for our review as his sole objection to State’s Exhibit 2 at trial was that the documents

were not “authenticated.” See Broxton, 909 S.W.2d at 918. Accordingly, we decide his first

issue against him.

       Issues four and five address the alleged erroneous admission of State’s Exhibit 2 because

it was not properly authenticated. As stated above, State Exhibit 2 reflected Garrett was charged

with “simple battery” and “interference with government property,” but the “simple battery”

charge was dismissed when Garrett pleaded guilty to the “interference with government

property” charge. However, the record is clear that the jury was misled as to the content of the

exhibit and what it stated as to Garrett’s criminal history. Garrett’s daughter was led to testify

that the exhibit “appeared to reflect” Garrett was convicted of assaulting her mother. Then,

when admitted as evidence, the prosecutor published the exhibit to the jury saying:
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       This is a conviction, case 98-CR-5451-5 out of DeKalb County, Georgia Superior
       Court for simple battery. It states: On the 26th day of May 1998, the defendant,
       Robert Garrett, did intentionally make physical contact with an assaultive
       provoking nature of the person Sharyl Williams. There’s also a probation
       revocation order filed on May 14, 2002 in the same cause number.

Finally, in urging in closing argument a lengthy sentence, the prosecutor characterized Garrett as

both a “child molester” and “wife beater,” referring to the exhibit and the testimony of the

complainant and her mother that Garrett had been violent towards the mother.

       In its brief on appeal, the State refers to the prosecution’s statements that Garrett was

convicted of “simple battery” as a “mischaracterization.” No explanation for the prosecutor’s

action is attempted. Misleading the jury as to the evidence is indefensible. See Ex parte Davis,

957 S.W.2d 9, 13 (Tex. Crim. App. 1997) (characterizing as “reprehensible” prosecutor’s actions

in misleading the jury as to why certain evidence was not tested and the quality of the

investigation conducted by the police). While we cannot condone what the State refers to as

“mischaracterization” and find such action reprehensible, in determining harm, we must review

the entire record and not only the action of the State as to the exhibit.

       Garrett was charged with engaging in sexual contact with the complainant, a second

degree felony punishable by imprisonment for any term of not more than twenty years or less

than two years and an optional fine not to exceed $10,000. See TEX. PENAL CODE ANN. §§

12.33, 21.11(a)(1), (d) (West 2011). In closing argument, defense counsel asked the jury to

“show some mercy” to Garrett, consider his steady employment and “his whole life,” and assess

the minimum sentence. The prosecutor, characterizing “child molestation” as the “worst” of the

second-degree felonies, asked the jury to start at the top of the punishment range and “then start

factoring in things . . . we [can] give [Garrett] credit for . . . [and things] we [can] hold as

aggravating factors against him.” The jury followed neither defense counsel’s plea for the

minimum two-year sentence nor the prosecutor’s implied plea for the maximum twenty-year

sentence. Instead, it assessed a nine year sentence and $4000 fine.
                                                –7–
       While the jury heard from the prosecutor that Garrett was a “wife beater” and had been

convicted of assaulting his first wife, the jury also heard (1) the complainant’s testimony that

Garrett molested her at least four times, she was fearful of Garrett, and she knew Garrett had hit

her mother and brother; (2) the complainant’s mother’s testimony that Garrett physically

assaulted her several times during their four-year relationship; and (3) Garrett’s daughter’s

testimony that the father she knew was not violent. Further, State’s Exhibit 2 was admitted into

evidence and available for the jury to review.

       Given the nature of the testimony before the jury, including the evidence supporting the

verdict, and the punishment assessed, we cannot conclude the jury would have assessed a

different sentence had State’s Exhibit 2 been excluded. Cf., e.g., Chapman v. State, 150 S.W.3d

809, 818-19 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (in aggravated sexual assault

case, admission of outcry testimony of extraneous offense was harmful where punishment

ranged from five years to ninety-nine years or life and jury assessed eighty-eight year sentence);

Aleman v. State, 49 S.W.3d 92, 96 (Tex. App.—Beaumont 2001, no pet.) (in display of harmful

material to minor case, admission of three driving while intoxicated judgments was harmful

where prosecutor relied on them to urge maximum sentence and jury assessed maximum

punishment of one year confinement in jail and $4000 fine). We decide Garrett’s fourth and fifth

issues against him.

       As to issue’s two and three, respecting Garrett’s ineffective assistance of counsel claim,

because the issues arise from the admission into evidence of State’s Exhibit 2 and we have

concluded Garrett was not harmed by the admission of the exhibit, we necessarily conclude

defense counsel’s performance as to the exhibit did not prejudice Garrett. See Lair v. State, 265

S.W.3d 580, 595 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (in determining whether

counsel’s deficient performance prejudiced appellant at punishment, inquiry is “whether there is

a reasonable probability that the jury’s assessment of punishment . . . would have been less
                                              –8–
severe in the absence of defense counsel’s deficient performance.”). Accordingly, his second

and third issues are also decided against him.

                                       IV. CONCLUSION

       Having decided Garrett’s six issues against him, we affirm the trial court’s judgment.



                                                       /Douglas S. Lang/
                                                       DOUGLAS S. LANG
                                                       JUSTICE

Do Not Publish
TEX. R. APP. P. 47
130883F.U05




                                                 –9–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ROBERT GARRETT, Appellant                          On Appeal from the 265th Judicial District
                                                   Court, Dallas County, Texas
No. 05-13-00883-CR        V.                       Trial Court Cause No. F-1052395-R.
                                                   Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                       Stoddart and Schenck participating.

       Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgment.


Judgment entered this 12th day of August, 2015.




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