                                     In The

                              Court of Appeals

                   Ninth District of Texas at Beaumont

                            _________________

                             NO. 09-16-00441-CR
                            _________________

               DENNIE THURMAN HOWELL JR., Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee
________________________________________________________________________

                   On Appeal from the 253rd District Court
                          Liberty County, Texas
                         Trial Cause No. CR32593
________________________________________________________________________

                         MEMORANDUM OPINION

      A grand jury indicted Dennie Thurman Howell, Jr. and charged him with the

offense of continuous sexual abuse of a child younger than fourteen stemming from

multiple alleged incidents occurring between September 1, 2007 and October 17,

2015. See Tex. Penal Code Ann. § 21.02 (West Supp. 2017).1 The indictment alleged



      1
      We cite to the current version of the Penal Code provisions, as the
amendments made to the cited statutes do not affect this appeal.
                                        1
the victim was J.J. Rosabel, which is a pseudonym for the victim’s actual name.2

More than thirty days before trial, the State filed its notice of intent to introduce

extraneous offenses against three other complainants: Audrey Gayle, Justice White,

and Skylar White.3,4 After a trial, the jury convicted Howell of the felony offense of

continuous sexual abuse of a child as charged in the indictment. See id. The jury

assessed punishment at thirty-five years. Howell appeals his conviction.

      In two issues Howell argues: (1) the trial court erred in admitting guilt-stage

evidence of extraneous offenses allegedly committed against other children, in

violation of amendments V and XIV of the United States Constitution, as well as

statutes and rules; and, (2) the trial court erred in admitting guilt-stage evidence of

extraneous offenses allegedly committed against other children, in violation of

article I, section 10 of the Texas Constitution, as well as statutes and rules. We affirm

the trial court’s judgment.



      2
         We identify the victim by the same pseudonym used in the indictment. See
Tex. Const. art. I, § 30(a)(1) (granting victims of crime “the right to be treated with
fairness and with respect for the victim’s dignity and privacy throughout the criminal
justice process”).
       3
         At trial, these witnesses testified under pseudonyms, and we refer to them
by these pseudonyms.
       4
         Separate causes of action were pending against Howell for crimes allegedly
committed against the other girls in Cause Nos. CR32342, CR32594, and CR32595.
The State filed a notice of consolidation joining those causes with this case; however,
Howell subsequently moved to sever those offenses prior to trial.
                                            2
                                   I. Background

      J.J. Rosabel, the complainant in this cause, was twelve years old at the time

of trial. Howell was J.J.’s neighbor and a friend of J.J.’s mother, T.H., who

occasionally cleaned Howell’s house. Howell had an open door policy, and J.J. and

T.H. came in and out of his home as they pleased. There were several occasions

where J.J. spent the night at Howell’s home at J.J.’s request.

      The charges of aggravated sexual assault of a child arose out of multiple

alleged incidents wherein Howell performed oral sex on J.J. and vaginally raped her.

Additional allegations included Howell touching J.J.’s breasts and “private parts.”

A. Article 38.37 Hearing

      Prior to trial, the court held a hearing outside the presence of the jury to

determine whether the extraneous offenses would be admitted pursuant to Texas

Code of Criminal Procedure article 38.37. See Tex. Code Crim. Proc. Ann. art. 38.37

(West Supp. 2017). The court determined that three other alleged victims could

testify regarding Howell’s extraneous offenses against them.

      During this hearing, defense counsel did not ask any questions of the three

witnesses who presented testimony of extraneous offenses allegedly committed

against them by Howell. Defense counsel lodged the following “objection” at the

conclusion of the hearing in response to the testimony of the two youngest witnesses:

                                          3
      Judge, I would point out that I believe the -- you know, relatively
      speaking to other matters that you’ve heard over the years, I think that
      the last two witnesses certainly are -- are -- the details are very thin,
      very thin, and I think the Court’s determination is whether this is
      reliable.

B. Trial Testimony Pertaining to J.J.

      At trial, T.H. testified as an outcry witness. See Tex. Code Crim. Proc. Ann.

art. 38.072 (West Supp. 2017). T.H. indicated her daughter did not appear afraid of

Howell and even referred to him as her “adopted dad.”

      J.J.’s friend at school alerted a teacher about the alleged abuse, and the

teachers called J.J. in to discuss it. On February 26, 2016, the school called T.H. to

tell her that J.J. had allegedly been touched by Howell. T.H. picked J.J. up from

school and took her to the police station to report it. T.H. then recounted for the jury

J.J.’s allegations of multiple incidents of sexual abuse by Howell against J.J.

      At trial, J.J. testified that Howell raped her and that it happened more than

once. J.J. did not recall how old she was the first time it happened, but she was twelve

the last time it happened. J.J. also testified that Howell touched her “private part”

with his mouth, but she could not recall how old she was or how many times it

happened.

      J.J. was examined by a sexual assault nurse examiner on March 2, 2016. The

nurse testified that J.J. identified Howell as her abuser and complained of oral,

                                           4
digital, and penile penetration. The nurse also testified that J.J. reported that the

abuse had been going on for two or three years, and it happened too many times to

count. The nurse further testified regarding her finding an injury to J.J. during the

exam which was highly suspicious of healed trauma and was consistent with

evidence of penile penetration.

C. Testimony of Extraneous Offenses

      Following the article 38.37 hearing outside of the presence of the jury, the

trial court determined the evidence presented at the hearing was adequate to support

a finding by the jury that the defendant committed separate offenses against three

other girls and that the three girls would be allowed to testify at trial. The two

youngest children were members of Howell’s family, Skylar, age eight, and Justice,

age six. The third witness, Audrey Gayle, was an unrelated friend of Howell’s

daughter and was fourteen at the time of trial. All three witnesses testified to

instances of alleged sexual abuse by Howell.

      At trial, Skylar and Justice recounted abuse that occurred when they lived with

Howell. Skylar testified that Howell took her out of her bed at night and brought her

into his room. She also testified he touched her breasts with his hand. Skylar

indicated Howell did this more than once, but she did not know how many times.



                                         5
Justice testified that Howell touched her private with his mouth more than seven

times, but she could not recall the first or last time that it occurred.

      Audrey testified that Howell touched her inappropriately with his hands.

Audrey could not recall how old she was the first time Howell touched her, but the

first incident occurred more than a year before trial. She recounted multiple instances

of inappropriate touching that occurred at Howell’s deer lease, at his home, and in

his swimming pool. At trial, she described an incident where she was spending the

night with Howell’s daughter, and she woke up to find Howell’s penis inside of her.

These incidents occurred over a number of weeks. The last incident involved Howell

touching her breast, which occurred weeks after the vaginal penetration. After the

last instance of abuse, Audrey told Howell’s daughter and Howell’s ex-wife, who

immediately called Audrey’s mother.

      Prior to trial, Howell elected to have the jury assess punishment. The jury

convicted Howell and assessed punishment at thirty-five years. This appeal ensued.

                              II. Preservation of Error

      In issues one and two, Howell complains that the admission of evidence of

extraneous offenses violated his rights under the Fifth Amendment to the United

States Constitution and under article I, section 10 of the Texas Constitution, as well

as other statutes and rules. In support of these issues, Howell asserts four arguments

                                            6
in his brief. First, he argues that the admission of the extraneous offenses violated

constitutional protections and that allowing them amounted to “firing shotgun blasts

of different accusations, blended together throughout a trial.” Second, Howell

contends article 38.37 facially only applies to extraneous acts committed against the

child who is the victim of the alleged offense, in this case J.J. Third, Howell argues

section 21.02 of the Penal Code does not contemplate allowing admission of

extraneous offenses. See Tex. Penal Code Ann. § 21.02. Finally, Howell asserts

allowing evidence of extraneous offenses violated Texas Rules of Evidence 401,

402, 403, and 404(b). See Tex. R. Evid. 401–404.

      Generally, the State cannot submit evidence of prior bad acts, wrongs, or other

acts to show that the defendant acted in accordance therewith or had a tendency to

commit the crime. Tex. R. Evid. 404(b). However, there are exceptions to the general

rule, and they are applicable to this case. In a trial of the sexual assault of a child,

there are special circumstances that “‘outweigh normal concerns associated with

evidence of extraneous acts.’” Alvarez v. State, 491 S.W.3d 362, 367 (Tex. App.—

Houston [1st Dist.] 2016, pet. ref’d) (quoting Jenkins v. State, 993 S.W.2d 133, 136

(Tex. App.—Tyler 1999, pet. ref’d)). Indeed, article 38.37 of the Texas Code of

Criminal Procedure specifically allows for the introduction of a criminal defendant’s

extraneous offenses in such a case. See Tex. Code Crim. Proc. Ann. art. 38.37. The

                                           7
statute was enacted to “authorize the admission of extraneous offense evidence

committed by the defendant against the minor complainant named in the

indictment.” Bezerra v. State, 485 S.W.3d 133, 138 (Tex. App.—Amarillo 2016, pet.

ref’d); Tex. Code of Crim. Proc. Ann. art. 38.37, § 1(b). Subsequently, the statute

was amended and section 2(b) was added, stating

      Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and
      subject to Section 2-a, evidence that the defendant has committed a
      separate offense described by Subsection (a)(1) or (2) may be admitted
      in the trial of an alleged offense described by Subsection (a)(1) or (2)
      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.

Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b). The amendment allows for the

admission of evidence of extraneous offenses committed by the defendant against

individuals other than the victim. Aguillen v. State, 534 S.W.3d 701, 711 (Tex.

App.—Texarkana 2017, no pet.).

A. Alleged Constitutional Violations

      Article 38.37 has been determined to be constitutional. See Harris v. State,

475 S.W.3d 395, 403 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). In

determining the statute’s constitutionality, the Houston court pointed to the

procedural safeguards built into the statute prior to the admission of evidence of

extraneous offenses. See id. at 402 (citing Tex. Code. Crim. Proc. Ann. art. 38.37, §

                                         8
2-a(1), (2)). Before such evidence is introduced, the trial court must conduct a

hearing outside the presence of the jury and determine the evidence likely to be

admitted will be adequate to support a finding by the jury that the defendant

committed the extraneous offense beyond a reasonable doubt. Id. During the hearing,

defense counsel has the right to cross-examine the witnesses and challenge any

testimony. Id. Furthermore, the State must provide defendant with notice at least

thirty days prior to trial of its intent to introduce extraneous offenses. Id.; see also

Tex. Code Crim. Proc. Ann. art. 38.37, § 3. Extraneous offense evidence offered

under article 38.37, section 2 must also meet the balancing test under Rule 403 if the

defendant lodges a timely Rule 403 objection before it is admitted. See Bezerra, 485

S.W.3d at 140.

      We now turn to Howell’s two specific complaints on appeal. We must first

address whether Howell’s complaints were properly preserved for appellate review.

Preservation of error is systemic and must be reviewed by a court of appeals, even

when the issue is not raised by the parties. Bekendam v. State, 441 S.W.3d 295, 299

(Tex. Crim. App. 2014). To preserve a complaint for appeal, a party must make a

timely, specific objection to the alleged error and obtain a ruling. Tex. R. App. P.

33.1(a); Pena v. State, 285 S.W.3d 459, 463–64 (Tex. Crim. App. 2009). A party

must “‘let the trial judge know what he wants, why he thinks he is entitled to it, and

                                           9
to do so clearly enough for the judge to understand him at a time when the judge is

in the proper position to do something about it.’” Pena, 285 S.W.3d at 464 (quoting

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). Moreover, whether

a party’s complaint is preserved is contingent upon whether the complaint on appeal

comports with the complaint made at trial. Id.

      Potential constitutional violations are not immune from waiver if the party

does not object at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).

Facial constitutional challenges to statutes and as-applied constitutional challenges

must be preserved in the trial court and cannot be raised for the first time on appeal.

Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (facial constitutional

challenge); Curry v. State, 910 S.W.2d. 490, 496 (Tex. Crim. App. 1995) (as-applied

constitutional challenge). The complaining party must identify the provision of the

constitution the statute violates. Lovill v. State, 319 S.W.3d 687, 692–93 (Tex. Crim.

App. 2009). The exception to the requirement that an accused must raise a

constitutional challenge at trial is when a statute has already been held void. Smith

v. State, 463 S.W.3d 890, 895–96 (Tex. Crim. App. 2015).5


      5
        Our system has recognized three distinct types of rules pertaining to rights
of criminal defendants: (1) absolute requirements and prohibitions which includes
the right to be free from enforcements of a statute that has been declared void or
unconstitutional; (2) rights of litigants which must be implemented by the system
unless expressly waived; and (3) rights of litigants which are to be implemented
                                          10
      Because article 38.37 has been held constitutional, Howell was required to

raise timely constitutional objections with the trial court. See Harris, 475 S.W.3d at

403; Smith, 463 S.W.3d at 895. At the article 38.37 hearing, defense counsel did not

cross-examine any witnesses regarding the alleged extraneous offenses. At the

conclusion of the hearing, defense counsel stated,

      Judge, I would point out that I believe the -- you know, relatively
      speaking to other matters that you’ve heard over the years, I think that
      the last two witnesses certainly are -- are -- the details are very thin,
      very thin, and I think the Court’s determination is whether this is
      reliable.

This was the only “objection” made by defense counsel during the hearing.

      The foregoing statement by defense counsel fails to apprise the trial court of

any constitutional complaints and thus, is insufficient to preserve any constitutional

complaint. When Audrey, Skylar, and Justice testified in front of the jury regarding

the alleged assaults Howell committed against them, the only objections made by

defense counsel were “speculation,” “leading,” and “asked and answered.”




upon request. Marin v. State, 851 S.W.2d 275, 278–81 (Tex. Crim. App. 1993),
overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App.
1997)). A “category one” right is absolute and is so fundamental it cannot be
forfeited or waived. Smith v. State, 463 S.W.3d 890, 896 (Tex. Crim. App. 2015).
Unlike here, Smith dealt with a facially unconstitutional statute and therefore
implicated a “category one” right not subject to waiver. See id. at 896–97.
                                         11
      While Howell argues the admission of extraneous offenses violated his

constitutional rights, nowhere in the record is an objection urged on any

constitutional ground. Because Howell’s objections at trial fail to comport with his

complaints of constitutional error on appeal, he failed to preserve these issues for

our review. See Tex. R. App. P. 33.1(a); Pena, 285 S.W.3d at 464. We overrule

issues one and two.

B. Article 38.37 and Admissibility of Extraneous Offenses, Texas Rules of
   Evidence 404, 405, and Penal Code Section 21.02

      While not framed as separate issues, Howell cites Aguillen v. State and Texas

Rules of Evidence 404 and 405 for the proposition that extraneous offenses should

not have been admitted in this case against him. See 534 S.W.3d at 701; Tex. R.

Evid. 404, 405; Tex. Code. Crim. Proc. Ann. art. 38.37. He further contends the

statute applies only to extraneous acts committed against the child who is the victim

of the alleged offense. These arguments lack merit. As noted above, article 38.37

was amended to specifically allow evidence of extraneous offenses against other

victims in cases involving sexual crimes against children. See Aguillen, 534 S.W.3d

at 711. While the court in Aguillen concluded the evidence regarding extraneous

offenses in that case should not have been admitted, the extraneous offenses there

bore little similarity to the charged crime. Id. at 712. Aguillen was on trial for sexual

assault of a child, but the extraneous offenses involved allegations of physical abuse
                                           12
and not sexual abuse. Id. at 712. The Texarkana Court noted that “an extraneous

offense committed by an accused against a third party must have some similarity to

the charged offense; that is, it must at least involve sexual misconduct of some sort.”

Id. at 711. That is unlike the scenario before us. Each of the extraneous offenses

Howell was accused of committing involved sexual assaults against young girls, and

the allegations were similar to the offense charged in the indictment.

       With respect to Howell’s assertion the extraneous offenses were not

admissible pursuant to Texas Rules of Evidence 404 and 405, article 38.37 expressly

states such evidence may be admitted “[n]otwithstanding Rules 404 and 405[.]” Tex.

Code Crim. Proc. Ann. art. 38.37, § 2(b); see also Vajda v. State, No. 09-16-00371-

CR, No. 09-16-00372-CR, No. 09-16-00378-CR, 2017 WL 6062469, at *4 (Tex.

App.—Beaumont Dec. 6, 2017, pet. ref’d) (mem. op., not designated for publication)

(concluding trial court did not err and Rule 404 did not preclude admission of

extraneous offense evidence of the possession of child pornography in trial of sexual

assault of a child). We also note that Howell failed to make a Rule 404 or 405

objection at trial.

       Finally, Howell argues that section 21.02 of the Texas Penal Code does not

contemplate a “shotgun” approach, with evidence of multiple victims when the State

elects to include only one victim in the indictment. Article 38.37 expressly allows

                                          13
for the admission of extraneous offenses in trials for charges of continuous sexual

abuse of a young child or children under section 21.02. Tex. Code Crim. Proc. Ann.

art. 38.37, § 2(a)(1)(B) (emphasis added). The plain language of article 38.37 allows

this type of evidence to be introduced even though the bad acts included multiple

victims who were not the subject of the indictment. See id.

C. Texas Rules of Evidence 401, 402, and 403

      Although not presented as a distinct issue, Howell further asserts that the

evidence of extraneous offenses should not have been admitted as such evidence was

irrelevant and unfairly prejudicial. See Tex. R. Evid. 401–403. Generally, all

relevant evidence is admissible. Tex. R. Evid. 402. Relevant evidence is evidence

that tends to make a fact more or less probable or is of consequence in determining

the action. Tex. R. Evid. 401. An exception to the general rule that relevant evidence

is admissible is if a trial court concludes its probative value is substantially

outweighed by the danger of unfair prejudice or confusion of the issues. Tex. R.

Evid. 403. There were no objections made at trial to the extraneous offense testimony

of Audrey, Skylar, or Justice on the basis of relevance, unfair prejudice, or confusion

of the issues. Therefore, Howell has failed to preserve these complaints for appeal.

See Tex. R. Evid. 33.1(a).



                                          14
                                  III. Conclusion

      Because Howell’s issues on appeal do not comport with his objections at trial,

we conclude he failed to preserve them for appellate review. See Tex. R. App. P.

33.1(a). The judgment of the trial court is affirmed.

      AFFIRMED.



                                               ________________________________
                                                       CHARLES KREGER
                                                             Justice

Submitted on April 18, 2018
Opinion Delivered July 11, 2018
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.




                                          15
