                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-07-198-CR


KENNETH EDWARD SANDERS                                           APPELLANT
A/K/A KENNETH EDWARDS SANDERS

                                      V.

THE STATE OF TEXAS                                                     STATE

                                  ------------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                  ------------

                                 OPINION

                                  ------------

                               I. INTRODUCTION

      A jury found Appellant Kenneth Edward Sanders guilty of three counts of

aggravated sexual assault of a child and assessed his punishment at thirty

years’ confinement on each charge.         The trial court sentenced Sanders

consistent with the jury’s findings and ordered the three sentences to run

consecutively. In three points, Sanders contends that the trial court erred by

(1) admitting evidence of an extraneous offense, (2) denying his request for a
limiting instruction, and (3) overruling his objection to the jury charge on

punishment. We will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      In 1998, Sanders married D.S.        At that time, D.S. had three young

children—two girls and a boy. One of those children, D.G., is the complainant

in this case and was ten years old when Sanders and her mother married. D.G.

testified that Sanders forced her into a sexual relationship with him beginning

when she was eleven years old and continuing for several years.

      During the course of this relationship, D.G. said that Sanders would force

her to engage either in sexual or oral intercourse with him every day or every

other day. Additionally, when D.G. had sleepovers with her girlfriends, Sanders

forced her to submit to and perform oral and sexual intercourse with him in

front of her friends. D.G.’s girlfriends were all about D.G.’s age—ranging from

eleven to thirteen years old. D.G. also testified that, on one occasion, Sanders

bought drugs and, in lieu of money payment, allowed the drug dealer to force

D.G. to have both sexual and oral intercourse with him.

      The State additionally presented the testimony of two of D.G.’s

girlfriends, who corroborated D.G.’s testimony regarding the forced intercourse

with Sanders during the sleepovers.      In his defense, Sanders denied all of

D.G.’s allegations and claimed that D.G. was fabricating the story in retaliation

                                       2
for Sanders’s moving her and her family to a different Fort Worth suburb in late

2000.

      After hearing the testimony of these and other witnesses, the jury found

Sanders guilty of three counts of aggravated sexual assault of a child and

assessed his punishment at thirty years’ incarceration on each count. Sanders

now appeals.

                III. A DMISSION OF E XTRANEOUS O FFENSE E VIDENCE

      In his first point, Sanders complains that the trial court erred by allowing

D.G.’s testimony that Sanders “gave” D.G. to his drug dealer and allowed the

dealer to sexually abuse D.G. in lieu of money payment for the drugs. Such

testimony, Sanders contends, was irrelevant, and, assuming that it was

relevant, was extremely prejudicial and of little probative value. We address

each argument in turn.

      A.    Standard of Review for Relevance Determinations

      Rule 404(b) embodies the established principle that a defendant is not to

be tried for collateral crimes or for being a criminal generally. T EX. R. E VID.

404(b); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992); Russell

v. State, 113 S.W.3d 530, 535 (Tex. App.—Fort Worth 2003, pet. ref’d);

Booker v. State, 103 S.W.3d 521, 530 (Tex. App.—Fort Worth 2003, pet.

ref’d) (op. on reh’g). Consequently, evidence of extraneous offenses is not

                                        3
admissible at the guilt-innocence phase of trial to prove that a defendant acted

in conformity with his character by committing the charged offense. T EX. R.

E VID. 404(b); Russell, 113 S.W.3d at 535; Booker, 103 S.W.3d at 529.

      However, the Texas Legislature has determined that, notwithstanding rule

404, evidence of other crimes, wrongs, or acts committed by the defendant

against a child under seventeen years old who is the victim of the alleged

offense shall be admitted for its bearing on relevant matters, such as the state

of mind of the defendant and the child and the relationship of the defendant and

the child before and after the offense. T EX. C ODE C RIM. P ROC. A NN. art. 38.37,

§ 2 (Vernon Supp. 2007); Dixon v. State, 201 S.W .3d 731, 734–35 (Tex.

Crim. App. 2006). Courts of appeals have therefore recognized that article

38.37, section 2 supersedes application of rule 402 and makes otherwise

irrelevant evidence relevant.    Jones v. State, 119 S.W.3d 412, 420 (Tex.

App.—Fort Worth 2003, no pet.); Hitt v. State, 53 S.W.3d 697, 704–05 (Tex.

App.—Austin 2001, pet. ref’d); Walker v. State, 4 S.W.3d 98, 102–03 (Tex.

App.—Waco 1999, pet. ref’d); Allred v. State, No. 11-04-00026-CR, 2006 WL

1029083, at *2 (Tex. App.—Eastland Sept. 13, 2006, pet. ref’d) (not

designated for publication). Even so, the State, as the proponent of extraneous

offense evidence, nevertheless bears the burden of showing admissibility of the




                                        4
evidence under article 38.37. See Rankin v. State, 974 S.W.2d 707, 718 (Tex.

Crim. App. 1998) (op. on reh’g).

      Rulings on relevance should be left largely to the trial court, relying on its

own observations and experience, and will not be reversed absent an abuse of

discretion. Salazar v. State, 38 S.W.3d 141, 153 (Tex. Crim. App. 2001);

Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App.), cert. denied, 510

U.S. 966 (1993). If the trial court’s ruling was within the “zone of reasonable

disagreement,” then there is no abuse of discretion, and the appellate court

must uphold the trial court’s ruling. Moreno, 858 S.W.2d at 463; Jones, 119

S.W.3d at 419.

      B.    Relevance of D.G.’s Testimony

      During D.G.’s testimony, the State asked D.G. whether she knew an

individual by the name of Ricky Sanders 1 and if anything unusual had happened

with him. At that point, Sanders objected that the testimony the State was

seeking to elicit was irrelevant. The trial court overruled the objection, at which

point Sanders argued that the testimony was related to an extraneous offense

and asked for a limiting instruction. The trial court, not knowing what D.G.




      1
       … Ricky Sanders is the cousin of Appellant Kenneth Edward Sanders
and, to avoid confusion, will be referred to as “Ricky” hereinafter.

                                         5
was going to say, excused the jury and conducted a brief hearing on the

matter.

      During the hearing, the State explained what D.G.’s testimony would be

and argued that it was admissible under article 38.37, section 2 of the code of

criminal procedure. Sanders responded that the prejudicial effect outweighed

any probative value of the testimony. The trial court reviewed article 38.37

and determined that D.G.’s testimony about Ricky was admissible under section

two of that article. The trial court then called the jury back in and gave the jury

the following admonishment: “I am instructing you at this point that the

following testimony is being admitted only for the purpose of showing the

previous and subsequent relationship between the defendant and the child, if

it does, and not for the purpose of showing a crime, if it does.” In its charge

at the guilt-innocence stage, the trial court likewise instructed the jury as

follows:

             You are instructed that if there is any testimony before you
      in this case regarding the Defendant’s having allegedly committed
      offenses[,] wrongs[,] or acts 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 offenses, if
      any were committed, and even then you may only consider the
      same in determining the motive, opportunity, intent, knowledge,
      [or] identity[] for this defendant now on trial before you, or to show
      the previous and subsequent relationship between the defendant
      and the child, if it does, and for no other purpose.

                                        6
      D.G. then testified that Sanders’s cousin, Ricky, was a drug dealer and

that Ricky sold methamphetamine to Sanders. On one occasion, Sanders either

did not have the money to pay for the drugs or simply did not want to pay for

the drugs. That afternoon, Sanders approached D.G. and told her that she

would be spending the rest of the afternoon with Ricky. D.G. did not suspect

anything, but Ricky took her back to his apartment and forced D.G. to engage

in both oral and sexual intercourse with him. D.G. later learned that sex with

her was Sanders’s form of payment to Ricky for the methamphetamine.

      On appeal, Sanders contends that because he was indicted for specific

acts of sexual abuse against D.G., the incident with Ricky to settle a drug debt

was completely irrelevant, as it did not tend to make any fact of consequence

more or less probable than it would be without the evidence. The State argues,

as it did at the trial level, that the testimony is relevant under article 38.37,

section 2 of the code of criminal procedure as showing Sanders’s and D.G.’s

states of mind and their previous and subsequent relationship.

      D.G.’s testimony concerning the events with Ricky was relevant in this

case to demonstrate the unnatural attitude and relationship Sanders had

developed toward D.G. See Jones, 119 S.W.3d at 420 (holding that evidence

of the defendant’s actions involving the child victim and third party children

was relevant to show the defendant’s state of mind and relationship with the

                                       7
complainant); Ernst v. State, 971 S.W.2d 698, 700 (Tex. App.—Austin 1998,

no pet.); Comeaux v. State, Nos. 14-03-01223-CR, 14-03-01224-CR, 14-03-

01225-CR, 2005 WL 1149795, at *5 (Tex. App.—Houston [14th Dist.] May

17, 2005, pet. ref’d) (not designated for publication) (holding evidence that the

defendant solicited a third party to have sex with the child victim was relevant

to show the defendant’s state of mind and his relationship with the victim).

The testimony revealed Sanders’s state of mind and relationship with D.G. by

demonstrating that Sanders saw sex with D.G. as a tradable good that he took

lightly.   Sanders’s allowing an adult male to sexually abuse D.G. thus

demonstrated his own state of mind and relationship with D.G. Moreover, the

trial court specifically instructed the jury not to consider the evidence for any

purpose other than showing the states of mind and relationship between D.G.

and Sanders. See Jones, 119 S.W.3d at 420.

       Therefore, considering article 38.37 and the evidence admitted at trial,

we cannot say with confidence that the evidence of what happened with Ricky

did not make it more probable that Sanders in fact had sexual relations with

D.G. himself. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1990) (op. on reh’g). Thus we hold that D.G.’s testimony concerning the

events with Ricky was relevant. See Moreno, 858 S.W.2d at 463.




                                       8
      C.      Standard of Review for Rule 403 Determination

      Evidence that is relevant under article 38.37 is nevertheless subject to

exclusion if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, misleading the jury, or needless

presentation of cumulative evidence. T EX. R. E VID. 403; Hitt, 53 S.W.3d at

706; Poole v. State, 974 S.W.2d 892, 897 (Tex. App.—Austin 1998, pet.

ref’d).    Only “unfair” prejudice provides the basis for exclusion of relevant

evidence.     Montgomery, 810 S.W.2d at 389.       Unfair prejudice arises from

evidence that has an undue tendency to suggest that a decision be made on an

improper basis, commonly an emotional one. Id.

      When a defendant makes a rule 403 objection, the trial court has a

nondiscretionary obligation to weigh the probative value of the evidence against

the unfair prejudice of its admission. Id. In overruling such an objection, the

trial court is assumed to have applied a rule 403 balancing test and determined

the evidence was admissible. See Poole, 974 S.W.2d at 897; Yates v. State,

941 S.W.2d 357, 367 (Tex. App.—Waco 1997, pet. ref’d); Caballero v. State,

919 S.W.2d 919, 922 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).

Rule 403 does not require that the trial court perform the balancing test on the

record. Poole, 974 S.W.2d at 897; Yates, 941 S.W.2d at 367.




                                        9
      The trial court is given wide latitude to admit or exclude evidence of

extraneous offenses.    See Montgomery, 810 S.W.2d at 390; Poole, 974

S.W.2d at 897. A reviewing court must therefore recognize that the trial court

is in a superior position to gauge the impact of the relevant evidence and not

reverse a trial court’s ruling if it is within the “zone of reasonable

disagreement.”   Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App.

1999); Montgomery, 810 S.W.2d at 391. In balancing probative value and

unfair prejudice under rule 403, an appellate court presumes that the probative

value will outweigh any prejudicial effect. Montgomery, 810 S.W.2d at 389.

It is therefore the objecting party’s burden to demonstrate that the probative

value is substantially outweighed by the danger of unfair prejudice. Hinojosa

v. State, 995 S.W.2d 955, 958 (Tex. App.—Houston [14th Dist.] 1999, no

pet.); Poole, 974 S.W.2d at 897.

      An appellate court must measure the trial court’s balancing determination

against the relevant criteria by which a rule 403 decision is made. Mozon, 991

S.W.2d at 847. The relevant criteria in determining whether the prejudice of

an extraneous offense substantially outweighs its probative value include (1)

how compellingly the extraneous offense evidence serves to make a fact of

consequence more or less probable—a factor which is related to the strength

of the evidence presented by the proponent to show the defendant in fact

                                      10
committed the extraneous offense; (2) the potential the other offense evidence

has to impress the jury “in some irrational but nevertheless indelible way”; (3)

the time the proponent will need to develop the evidence, during which the jury

will be distracted from consideration of the indicted offense; and (4) the force

of the proponent’s need for this evidence to prove a fact of consequence, that

is, does the proponent have other probative evidence available to him to help

establish this fact, and is this fact related to an issue in dispute. Id. (citing

Montgomery, 810 S.W.2d at 389–90).

      When the relevant criteria are viewed objectively and lead to the

conclusion that the danger of unfair prejudice substantially outweighs the

probative value of the proffered evidence, the appellate court should declare

that the trial court erred by failing to exclude it. Curtis v. State, 89 S.W.3d

163, 170 (Tex. App.—Fort Worth 2002, pet. ref’d) (citing Montgomery, 810

S.W.2d at 392).

      D.    Rule 403 and D.G.’s Testimony

      Sanders argues that the prejudicial effect of D.G.’s extraneous offense

testimony involving Ricky far outweighed its probative value and that the trial

court therefore erred by overruling his objection to it. 2 Applying the rule 403


      2
       … Because Sanders objected on specific grounds and the trial court
overruled his objection, we assume that the trial court applied rule 403 and

                                       11
balancing factors, we first examine how compellingly the extraneous act

involving D.G. and Ricky shows Sanders’s guilt in committing the charged

offenses.   See Mozon, 991 S.W.2d at 847.       Here, the indictment charges

Sanders with, on various occasions, intentionally or knowingly causing the

penetration of D.G.’s female sexual organ by inserting his finger, tongue, and

male sexual organ into her female sexual organ and of causing the penetration

of D.G.’s mouth with his male sexual organ. Evidence that Sanders was willing

to allow Ricky to sexually assault D.G. in the same manner in which Sanders

was charged makes it more likely—but probably not compellingly likely—that

he himself did the same thing to D.G.

      Next, under the second and third factors, we examine the potential of the

evidence to impress the jury in some irrational but nevertheless indelible way

and the amount of time the State used in developing the evidence. See id.

D.G.’s testimony about what Ricky did to her and Sanders’s involvement may

have inflamed the jury, but the incident with Ricky, although heinous, paled in

comparison to D.G.’s graphic testimony about Sanders’s repeated sexual

assaults of her beginning when she was eleven years old and continuing for




determined that the probative value of the evidence was not substantially
outweighed by any degree of unfair prejudice. See Poole, 974 S.W.2d at 897;
Yates, 941 S.W.2d at 367.

                                      12
several years.    D.G.’s graphic testimony concerning Sanders’s conduct

overshadowed, by far, any inflammatory response the jury may have had to

D.G.’s testimony concerning the events with Ricky.         Furthermore, D.G.’s

description of the incident with Ricky consisted of little more than one page in

almost two hundred pages of testimony. Additionally, D.G.’s brief testimony

about the incident with Ricky was followed by a specific limiting instruction

from the trial court (which was almost as long as D.G.’s testimony about the

incident) directing the jury to consider the evidence only inasmuch as it

demonstrated the relationship between D.G. and Sanders. Consequently, here

the extraneous act involving Ricky was not likely to create such prejudice in the

minds of the jurors that they would be unable to consider the evidence for its

proper purpose. See id.

      Looking to the fourth factor, we determine the force of the State’s need

for D.G.’s testimony about the incident with Ricky.         See id.   The State

possessed evidence and testimony concerning Sanders’s direct acts against

D.G. The State’s need for the testimony was thus only slight. Beginning with

the presumption that D.G.’s testimony about the incident with Ricky was more

probative than prejudicial and evaluating it under the rule 403 factors, however,

we cannot say that Sanders was unfairly prejudiced by D.G.’s testimony. See

id.; Montgomery, 810 S.W.2d at 389. We therefore hold that the trial court did

                                       13
not abuse its discretion by allowing D.G.’s testimony concerning the incident

with Ricky. Mozon, 991 S.W.2d at 847.

      E.    No Harm from Admitting D.G.’s Testimony

      Alternatively, even if D.G.’s testimony about the incident with Ricky was

more prejudicial than probative, her testimony on this point was nevertheless

harmless. See Cockrell v. State, 933 S.W.2d 73, 90 (Tex. Crim. App. 1996),

cert. denied, 520 U.S. 1173 (1997) (conducting a harm analysis after

determining that the trial court did not commit error).

      In making this determination, we evaluate the admission of the

extraneous offense evidence in the context of the entire record. See Motilla v.

State, 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002). Here, the record

reveals that the State spent very little time on the Ricky incident. D.G.’s actual

testimony on the issue took up a little over a page of the almost two-hundred-

page record. Furthermore, the State did not mention the incident at all in its

opening statement and mentioned it only briefly in closing arguments, saying,

“You may use as instructed in the Court’s Charge, all the testimony, cousin

Ricky, all the other part -- well, actually what I’m talking about is the stuff in

Parker County. You can use -- utilize that testimony in your evaluation, if you

believe beyond a reasonable doubt that that occurred.” The State went on to

focus solely on the testimony about the sexual acts that Sanders forced D.G.

                                       14
to perform in front of and with her girlfriends. The State did not present any

other witnesses who testified about the incident.

      Considering the brief presentation of evidence about what Ricky did to

D.G. and Sanders’s involvement in the context of the entire record, we cannot

say that the testimony substantially swayed or influenced the jury’s verdict.

See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing

Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946))

(establishing that there is no harm upon the admission of evidence unless the

admission had a substantial and injurious influence in determining the jury’s

verdict). Thus, even if the evidence of Sanders’s trading sex with D.G. for

drugs was more prejudicial than probative, it nevertheless would have been

harmless error. Accordingly, we overrule Sanders’s first point.

                            IV. L IMITING INSTRUCTION

      Sanders’s second point is that the trial court erred by denying his request

for a contemporaneous limiting instruction in connection with the admission of

a different extraneous offense.

      A.    When a Trial Court Must Give a Limiting Instruction

      Under Texas Rule of Evidence 105(a),

      When evidence which is admissible as to one party or for one
      purpose but not admissible as to another party or for another
      purpose is admitted, the court, upon request, shall restrict the

                                       15
      evidence to its proper scope and instruct the jury accordingly; but,
      in the absence of such request [,] the court’s action in admitting
      such evidence without limitation shall not be a ground for complaint
      on appeal.

T EX. R. E VID. 105(a).

      The first opportunity to request a limiting instruction is when the

testimony is initially admitted. See Hammock v. State, 46 S.W.3d 889, 895

(Tex. Crim. App. 2001).       A limiting instruction on testimony about an

extraneous offense, if requested, should be given when the evidence is

admitted and then again in the final jury charge. Delgado v. State, 235 S.W.3d

244, 251 (Tex. Crim. App. 2007); Hammock, 46 S.W.3d at 895. Giving the

limiting instruction in the jury charge alone is insufficient because it is

impossible for jurors to go back at the close of the trial and reassess the

evidence in light of the limiting instruction, even if they could appreciate which

items of evidence the instruction was supposed to apply to. Hammock, 46

S.W.3d at 895.      This may result in the jury drawing inferences about the

defendant’s guilt based upon character conformity, a use of the evidence that

was not contemplated by the trial court. Delgado, 235 S.W.3d at 251. The

danger then becomes that the improper inference drawn cannot later be erased

by an instruction in the charge. Id.




                                       16
      B.    Necessity of a Limiting Instruction for D.G.’s Testimony

      In this case, the State sought to elicit testimony from D.G. about

incidents that happened when two of her best friends, M.E. and A.S., both of

whom were approximately D.G.’s age, spent the night at D.G.’s house. The

State established that these incidents occurred in Parker County. 3           The

following exchange then occurred:

      Q.    Did they [M.E. and A.S.] sometimes spend the night?

      A.    Yes.

      Q.    During this time was there something significant that started
      occurring?

      A.    When they started to stay the night [Sanders] would stay
      home more when my mom went out. He started to buy wine
      coolers again.

      [SANDERS’S ATTORNEY]:       Your Honor, at this time we would
      object to this testimony, 401, 403 and 404, it’s outside the
      jurisdiction of anything --

At that point, the trial court noted the hour and took a recess for lunch, saying

that it would rule after the lunch break. Before bringing the jury back in for the

afternoon session, the following exchange took place:




      3
      … In 2000, the family moved from Tarrant County to Parker County.
Sanders was indicted only for incidents that occurred in Tarrant County, before
the move to Parker County.

                                       17
      THE COURT:        Okay. I think the last thing that happened
      actually was the objection by [Sanders’s attorney].

      [STATE’S ATTORNEY]:             The objection was to offenses alleged
      in Parker County, not in Tarrant County. He objected to those that
      the court didn’t have jurisdiction on those, I believe that’s right. Is
      that right, [Sanders’s attorney]?

Sanders’s attorney did not answer but engaged in a debate as to whether the

State should respond in front of the jury. The State ultimately responded to

Sanders’s objection by saying, “Under 404(b) and 38.37 the [S]tate submits it’s

admissible.” The trial court overruled Sanders’s objection.

      D.G. then testified that, after the family had moved from Tarrant County

to Parker County, Sanders continued to sexually assault her in a variety of

ways. Sanders “renew[ed] the objection” and sought a continuing objection to

the testimony. D.G. then testified that one night, she had a sleepover at her

house and invited M.E. and A.S. to stay the night.        She said that Sanders

provided wine coolers and marijuana to the twelve- and thirteen-year-old girls.

Then, Sanders’s attorney objected,

      [SANDERS’S ATTORNEY]:        Your Honor, we would again object
      at this point under 401, 403, and 404 for the reasons previously
      stated. We would ask for a limiting instruction at this point.

      THE COURT:         Okay. I’ll overrule the objection.

      [SANDERS’S ATTORNEY]:          Request for a limiting instruction,
      you’re overruling that as well?


                                       18
      THE COURT:        I’ll deny the request for a limiting instruction.

      [SANDERS’S ATTORNEY]:        So I don’t have to object to each
      question, may I have a continuing objection to both of those and
      continuing request?

      THE COURT:        Okay.

      D.G. then went on to testify that, during the sleepover, Sanders sexually

assaulted her in front of M.E. and A.S. and had M.E. and A.S. also sexually

assault her and each other. M.E. testified after D.G. and corroborated exactly

what D.G. had said. Sanders never objected to M.E.’s testimony.

      We need not decide whether the trial court erred by not giving the limiting

instruction requested by Sanders. Sanders’s running objection and request for

a limiting instruction applied only to D.G.’s testimony. See Fuentes v. State,

991 S.W.2d 267, 273 (Tex. Crim. App.), cert. denied, 528 U.S.1026 (1999);

Scaggs v. State, 18 S.W.3d 277, 292 (Tex. App.—Austin 2000, pet. ref’d)

(noting that a running objection when requested by defense counsel and

granted by the trial court does not preserve error when another witness testifies

to the same matter without objection). But when the same evidence was later

introduced through the matching testimony of M.E., Sanders did not object or

request a limiting instruction.4 Consequently, the issue raised by Sanders—that


      4
       … We note that Sanders’s objections and parallel request for a limiting
instruction were made under rules 401, 403, and 404 of the rules of evidence

                                       19
the trial court erred by admitting and failing to give a limiting instruction

concerning D.G.’s testimony about the group sex with A.S. and M.E.—is moot.

See Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999), cert.

denied, 528 U.S. 1082 (2000) (commenting that it is well established that

questions regarding the admission of evidence are rendered moot if the same

evidence is elsewhere introduced without objection).

      In other words, even if the trial court had erred by admitting D.G.’s

testimony without a limiting instruction based on Sanders’s 401, 403, and 404

objection, such an error was made harmless by M.E.’s testimony, which was

offered for all purposes, without objection. See id.; Matz v. State, 21 S.W.3d

911, 912 (Tex. App.—Fort Worth 2000, pet. ref’d) (holding that even if the trial

court had erred by improperly admitting evidence, such error was harmless

when the evidence was later introduced without objection); Brown v. State, 6

S.W.3d 571, 580 (Tex. App.—Tyler 1999, pet. ref’d) (stating that “[e]ven

when inadmissible evidence is erroneously admitted, the error is cured when the

same evidence is admitted without objection elsewhere at trial”). Accordingly,

we overrule Sanders’s second point.5



which would apply equally to M.E.’s testimony.
      5
      … The State argues that the evidence in this case was same transaction
contextual evidence and that, therefore, no limiting instruction was required.

                                       20
              V. ISSUANCE OF S TATUTORILY M ANDATED J URY C HARGE

      In his third point, Sanders complains, as he did at trial, that the court’s

charge to the jury concerning the possibility of good conduct time denied him

due process because the charge contained an incorrect statement of the law.

      In crafting its charge to the jury at the punishment phase of trial, a trial

court is bound to comply with the mandatory language of article 37.07, section

4 of the code of criminal procedure. T EX. C ODE C RIM. P ROC. A NN. art. 37.07, § 4

(Vernon Supp. 2007). This article requires that in the trial court’s instruction

to the jury during the punishment phase, the trial court must inform the jury of

the existence and mechanics of parole law and good conduct time. Id.

      A person convicted of certain enumerated offenses, however, is not

eligible for release on mandatory supervision, regardless of how much good

time he might accrue; his good conduct time does not make him eligible for

parole any sooner than he would be without the good conduct time credits.

See T EX. G OV’T C ODE A NN. § 508.149(a) (Vernon Supp. 2007); T EX. P ENAL C ODE

A NN. § 22.021(a)(1)(B), (e) (Vernon Supp. 2007); Luquis v. State, 72 S.W.3d

355, 362 (Tex. Crim. App. 2002).




We need not address this argument, however, in light of our holding that
Sanders did not preserve his complaint concerning the denial of a rule 401,
403, or 404 limiting instruction concerning D.G.’s testimony because M.E.’s
identical testimony was admitted for all purposes without objection.

                                        21
      Thus, in a case where the jury has found the defendant guilty of one of

the offenses set forth in government code section 508.149(a), the portion of

the statutorily mandated jury charge discussing good conduct time only

marginally applies to that defendant. See Luquis, 72 S.W.3d at 362. This has

led some defendants to argue that the jury instruction on good conduct time is

a misstatement of the law as it applies to them and is therefore a violation of

due process rights. See id. at 366 n.29.

      In 2002, the court of criminal appeals took up the issue of whether article

37.07, section 4(a) of the code of criminal procedure was unconstitutional

under the due course of law provisions of the Texas and United States

Constitutions in that it required instructions on good conduct time that could

mislead the jury in a case in which good conduct time did not affect parole

eligibility or release date.    Id. at 358.    After a detailed examination of the

legislative history of the statute and impact of the instruction on the defendant,

the court of criminal appeals determined that the statute did not violate either

constitutional provision.      Id. at 365.    We note that this court has similarly

concluded that article 37.07, section 4(a) does not violate either due process

provision. See Cagle v. State, 23 S.W.3d 590, 594 (Tex. App.—Fort Worth

2000, pet. ref’d).

      In this case, Sanders was convicted of aggravated sexual assault of a

child. This is one of the offenses included in the statute prohibiting release on


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mandatory supervision. See T EX. G OV’T C ODE A NN. § 508.149(a)(8). Therefore,

good conduct time has little impact on when Sanders will be eligible for parole.

See Luquis, 72 S.W.3d at 362. Nevertheless, the trial court included in its jury

charge the mandatory language of article 37.07, section 4(a) in its totality,

including the instruction on good conduct time. See T EX. C ODE C RIM. P ROC. A NN.

art. 37.07, § 4.

      As discussed above, the court of criminal appeals has evaluated the very

argument that Sanders presents and has determined that a jury charge like the

one here does not violate a defendant’s due process rights. See Luquis, 72

S.W.3d at 365. This court has similarly handed down a case that is directly on

point and determined that a jury charge like the one here does not violate a

defendant’s due process rights.      See Cagle, 23 S.W.3d at 594.         Sanders

himself admits in his brief to this court that “the Court of Criminal Appeals has

directly addressed [the] issue raised herein and found no violation of due

process in the jury charge authorized by statute.” Accordingly, we overrule

Sanders’s third point.

                                 VI. C ONCLUSION

      Having overruled all three of Sanders’s points, we affirm the trial court’s

judgment.




                                                   SUE WALKER
                                                   JUSTICE


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PANEL F:   CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

PUBLISH

DELIVERED: May 8, 2008




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