                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-15-00018-CR


LEWIS EDWARD CAMPBELL                                            APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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           FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
                       TRIAL COURT NO. 52,792-A

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                        MEMORANDUM OPINION1

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      Appellant Lewis Edward Campbell appeals his convictions for three counts

of aggravated sexual assault of a child, one count of attempted aggravated

sexual assault of a child, and one count of indecency with a child by sexual

contact.   See Tex. Penal Code Ann. §§ 15.01, 21.11 (West 2011), § 22.021

(West Supp. 2015). In a single issue, divided into several subparts, Campbell

      1
       See Tex. R. App. P. 47.4.
argues that the trial court erred by instructing the jury that it could consider

evidence of extraneous offenses for character-conformity purposes.          We will

affirm.

      In February 2012, nine-year-old S.C. told a counselor at her elementary

school in Wichita Falls that her father, Campbell, had sexually abused her. The

counselor reported S.C.’s graphic disclosures to CPS, and at a forensic interview

that followed, S.C. revealed the “very nasty things” that Campbell had done to

her multiple times. Authorities initiated an investigation into S.C.’s claims against

Campbell, whose work required him to be away from home for lengthy periods of

time, but no warrant issued for his arrest. CPS allowed S.C. to remain in the

care of her stepmother, having instructed her that Campbell was not allowed in

the house, but he came over anyway, according to S.C.

      CPS received a number of other referrals regarding S.C. after her initial

disclosures. In February 2012, S.C. reported that Campbell had entered her

room one night but that he had left when she screamed, and in May 2012, S.C.

came to school with a black eye and said that Campbell had hit her.

      In June or July 2012, Campbell, S.C., and S.C.’s stepmother and younger

sister moved to Tennessee to “get[] away from CPS.” However, soon thereafter,

in August 2012, CPS in Tennessee received a referral regarding S.C.             S.C.

disclosed that Campbell had sexually abused her, and CPS removed S.C. and

her sister from Campbell’s home. A sexual assault exam performed on S.C.




                                         2
revealed several things that were “cause for concern and suspicio[n] for abuse.”

When the CPS investigator spoke on the phone with Campbell, he neither voiced

any concern for S.C. nor asked any questions about her well-being. Instead,

Campbell explained that he had merely removed S.C.’s clothes and treated her

like a baby because she had bad hygiene.

      Authorities in Wichita Falls arrested Campbell in October 2012. A grand

jury later indicted him for five offenses that allegedly occurred in Wichita County

in January and February 2012.2 At trial, several witnesses testified that S.C. had

a black eye in May 2012, and after a preliminary hearing outside the presence of

the jury, a CPS worker from Tennessee testified about the disclosures that S.C.

had made involving Campbell following the referral to CPS in Tennessee.

Paragraph 13 of the court’s charge at the guilt phase instructed the jury as

follows:

            If you find that there is evidence in this case of the defendant
      having committed acts other than those for which he is now on trial,
      and you find that evidence to be true beyond a reasonable doubt,

      2
       The indictment alleged that Campbell had committed aggravated sexual
assault of a child by intentionally or knowingly causing (1) S.C.’s mouth to come
into contact with Campbell’s sexual organ, (2) S.C.’s sexual organ to contact
Campbell’s mouth, and (3) the penetration of S.C.’s sexual organ with
Campbell’s finger. The indictment also alleged that Campbell had committed
attempted aggravated sexual assault of a child by “making [S.C.] bend over
and/or trying to insert [his] sexual organ into the anus of [S.C.] and/or putting [his]
sexual organ against the butt of” S.C. Lastly, the indictment alleged that
Campbell had committed indecency with a child by sexual contact by intentionally
or knowingly, and with the intent to arouse or gratify his sexual desire, causing
S.C. to touch his genitals.



                                          3
      then you can consider that evidence for the purposes of showing the
      state of mind of the defendant and the child, and/or the previous and
      subsequent relationship between the defendant and the child, and/or
      the character of the defendant and acts performed in conformity with
      the character of the defendant, and/or intent, and/or opportunity,
      and/or lack of mistake, but for no other purposes. [Emphasis
      added.]

The jury convicted Campbell on each count and assessed his punishment at life

imprisonment and a $10,000 fine on each of the aggravated assault convictions

and twenty years’ confinement and a $10,000 fine for each of the attempted

aggravated sexual assault and indecency convictions.

      In his only issue, Campbell argues that the trial court erred by instructing

the jury in paragraph 13 that it could consider evidence of extraneous offenses to

show his character and that he acted in conformity therewith.              Campbell

acknowledges that section 2 of code of criminal procedure article 38.37 allows

evidence of certain extraneous offenses to show “the character of the defendant

and acts performed in conformity with the character of the defendant,” but he

contends that “the conditions required for admissibility [of such extraneous

offenses or acts] as set forth in Article 38.37 §§ 2, 2-a, and 3 were not met.”

Assuming without deciding that these alleged errors are properly analyzed as

jury charge errors subject to an Almanza analysis, rather than trial errors initially




                                         4
subject    to   error-preservation   requirements,    Campbell’s       arguments   are

unpersuasive.3

       “[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012); see Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984) (op. on reh’g). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. Kirsch, 357

S.W.3d at 649.      If error occurred, whether it was preserved determines the

degree of harm required for reversal. Id.

       Section 2(b) of article 38.37 provides as follows:

             (b)    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)   (West    Supp.   2015).

Subsection (a)(1) of section 2 includes the offenses of aggravated sexual assault




       3
        Insofar as Campbell’s arguments about notice and a preliminary hearing
are not properly analyzed under Almanza, we note that Campbell did not assert
any objection at trial implicating article 38.37, section 3’s notice requirement or
article 38.37, section 2-a’s preliminary hearing procedure. Therefore, in that
case, neither argument was preserved for appellate review. See Tex. R. App. P.
33.1(a).



                                          5
of a child and indecency with a child, the same offenses for which Campbell was

indicted.4 Id. art. 38.37, § 2(a)(1)(C), (E).

      Campbell argues that the trial court nevertheless erred by including the

character-conformity language in paragraph 13 of the charge because the State

failed to give notice of its intent to introduce extraneous offense evidence “for the

purpose of proving Appellant’s character.” In other words, Campbell does not

complain that the State’s notice failed to identify any particular extraneous

offense or act; he only argues that the notice failed to explicitly state that any

extraneous offense or act would be introduced for character-conformity

purposes.    The record demonstrates that the State noticed Campbell that it

intended to introduce extraneous offense evidence or acts for the reasons

articulated in rules of evidence 404(b) and 609 and code of criminal procedure

article 38.37, section 1 but not section 2—the section that addresses character-

conformity evidence. However, section 3 of article 38.37 requires the State to

“give the defendant notice of the state’s intent to introduce in the case in chief

evidence described by Section . . . 2 not later than the 30th day before the date

of the defendant’s trial.” Id. art. 38.37, § 3 (emphasis added). Thus, the statute

requires the State to give the defendant notice of the evidence that it intends to

use, not the specific purpose for which the State intends to offer the evidence.

      4
        Campbell was also indicted for attempted aggravated sexual assault of a
child, and subsection (a)(2) of section 2 covers an attempt to commit an offense
described by subsection (a)(1). Tex. Code Crim. Proc. Ann. art. 38.37, § 2(a)(2).



                                           6
Campbell’s argument is contrary to the plain language of section 3, he directs us

to no authority to support his reading of the statute, and the record does not

indicate that Campbell lacked notice of, or was otherwise surprised by, any

particular extraneous offense or act introduced by the State at trial.          See

Villarreal v. State, 470 S.W.3d 168, 175–76 (Tex. App.—Austin 2015, no pet.)

(“[Appellant] has referred to no authority and we are not aware of any authority

requiring the State to specifically list in its notice pertaining to evidence of

extraneous offenses the statutes or rules under which that evidence will be

introduced.”); cf. Cole v. State, 987 S.W.2d 893, 897 (Tex. App.—Fort Worth

1998, pet. ref’d) (analyzing prior version of article 38.37, section 3 and reasoning

that “[t]he purpose of the notice requirement is to prevent surprise to the

defendant and apprise him of the offenses the State plans to introduce at trial”).

      Campbell next argues that the trial court erred by including the character-

conformity language in paragraph 13 of the charge because no article 38.37,

section 2-a preliminary hearing occurred before either S.C. or the sexual assault

nurse examiner from Tennessee testified. Section 2-a provides as follows:

              Before evidence described by Section 2 may be introduced,
      the trial judge must:

      (1)  determine that the evidence likely to be admitted at trial will be
      adequate to support a finding by the jury that the defendant
      committed the separate offense beyond a reasonable doubt; and

      (2)  conduct a hearing out of the presence of the jury for that
      purpose.




                                         7
Tex. Code Crim. Proc. Ann. art. 38.37, § 2-a. The trial court did not perform a

section 2-a preliminary determination before the testimony of either S.C. or the

sexual assault nurse from Tennessee, but it did conduct the hearing before the

testimony of Kristen Bohannon, the CPS worker from Tennessee. Bohannon

was the outcry witness who testified in detail about the disclosures that S.C.

made about Campbell during her forensic interview in Tennessee.             Before

Bohannon testified, and consistent with section 2-a, the trial court conducted a

hearing outside the presence of the jury and explicitly found that “the evidence

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

Defendant committed the offense beyond a reasonable doubt.” The Tennessee

extraneous offenses or acts of which Bohannon testified were the same

Tennessee extraneous offenses or acts of which S.C. testified.5 We do not read

article 38.37, section 2-a as obligating the trial court to inefficiently conduct

duplicative preliminary hearings involving the same extraneous offenses or acts.

Accordingly, the trial court complied with article 38.37, section 2-a’s preliminary

hearing requirement as it pertains to the extraneous offenses or acts allegedly

committed by Campbell in Tennessee.

      Lastly, Campbell argues that the trial court erred by including the

character-conformity language in paragraph 13 of the charge because the

      5
       The sexual assault nurse concluded that there was “cause for concern
and suspicio[n] for abuse” but did not testify about any specific extraneous
offenses or acts.



                                        8
extraneous offense or act that Campbell gave S.C. a black eye is not one of the

“separate offense[s]” described by article 38.37, section 2 that may be admitted

during trial for character-conformity purposes. Campbell is correct that simple

assault is not identified in section 2; however, under section 1, in the prosecution

of a defendant under penal code “Chapter 21 (Sexual Offenses)” or “Chapter 22

(Assaultive Offenses),” and if the offense is committed against a child under

seventeen years of age, extraneous offenses or acts are admissible to show “the

state of mind of the defendant and the child” and “the previous and subsequent

relationship between the defendant and the child.” Id. art. 38.37, § 1(a)(1), (b).

Here, the indictment alleged that Campbell had committed offenses against

S.C.—a child under fourteen years of age—under either penal code chapter 21

or chapter 22, and in addition to character conformity, paragraph 13 of the

charge disjunctively instructed the jury that it could consider extraneous offenses

or acts “for the purposes of showing the state of mind of the defendant and the

child, and/or the previous and subsequent relationship between the defendant

and the child.” Therefore, the jury could have properly considered the evidence

that Campbell gave S.C. a black eye for the reasons articulated in article 38.37,

section 1 instead of for purposes of character conformity. See Riddle v. State,

888 S.W.2d 1, 8 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1068 (1995) (“A

jury charge which tracks the language of a particular statute is a proper charge

on the statutory issue.”).




                                         9
      We hold that the trial court did not err by instructing the jury that it could

consider evidence of extraneous offenses or acts for character-conformity

purposes. See Kirsch, 357 S.W.3d at 649. We overrule Campbell’s only issue

and affirm the trial court’s judgments.




                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE

PANEL: GARDNER, MEIER, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 10, 2015




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