                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-07-00155-CR
         ______________________________


             DAMUS BACON, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 124th Judicial District Court
                 Gregg County, Texas
               Trial Court No. 35279-B




      Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Moseley
                                   MEMORANDUM OPINION

       Damus Bacon waived his right to a jury trial, pled guilty to sexual assault, see TEX . PENAL

CODE ANN . § 22.011 (Vernon Supp. 2007), and submitted the issue of punishment to the trial court's

discretion without the benefit of a negotiated plea agreement. The State had previously filed its

written notice of intent to introduce evidence of other crimes, wrongs, or bad acts during the

punishment phase of Bacon's trial. The State introduced such evidence at the punishment trial and

this same evidence was included in the presentence investigation (PSI) report submitted to the trial

court, which ultimately sentenced Bacon to eighteen years' confinement. Bacon now appeals,

contending in a single point of error that the trial court erred by admitting and considering, during

the punishment phase of the trial, evidence that Bacon had committed extraneous criminal offenses

that were not charged in the indictment to which he had pled guilty and was then being sentenced.

       Bacon asserts the trial court's consideration of this extraneous-offense evidence violates his

Sixth Amendment right "to have a jury find the existence of 'any particular fact' that the law makes

essential to his punishment" and cites Blakely v. Washington, 542 U.S. 296, 301 (2004). We first

note that Bacon has not challenged the sufficiency of the evidence about his extraneous conduct;

rather, he only challenges the trial court's decision to admit and consider such conduct within the

context of assessing punishment. Nevertheless, Bacon's point of error ignores the fact that he

voluntarily and knowingly waived his Sixth Amendment right to a jury trial on both the

guilt/innocence and punishment phases in this case. He also made no objection to the trial court's



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consideration of the PSI report that contained much of the extraneous-offense evidence which now

forms the basis of his appellate complaint. Therefore, his failure to object to the at-issue evidence

at the earliest point of its admission means this issue has not been preserved for appellate review.

See TEX . R. APP . P. 33.1(a). Additionally, Bacon's insistence on the application of Blakely to the

procedural posture of this case is entirely inappropriate because he voluntarily waived his right to

have a jury determine his punishment in this case.

       Moreover, as the State correctly notes in its appellate brief, our law expressly permits a trial

court to admit evidence offered by either the State or the defendant

       as to any matter the court deems relevant to sentencing, including but not limited to
       the prior criminal record of the defendant, his general reputation, his character, an
       opinion regarding his character, the circumstances of the offense for which he is
       being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any
       other evidence of an extraneous crime or bad act that is shown beyond a reasonable
       doubt by evidence to have been committed by the defendant or for which he could
       be held criminally responsible, regardless of whether he has previously been charged
       with or finally convicted of the crime or act . . . .

TEX . CODE CRIM . PROC. ANN . art. 37.07, § 3 (Vernon Supp. 2007).

       In pronouncing its sentence, the trial court made several comments about the extraneous-

offense evidence brought forth. The trial court's comments suggest the court found the evidence of

the at-issue extraneous offense(s) to have been proven beyond a reasonable doubt. Such a

sufficiency finding was inherently necessary before the trial court could consider such acts in

assessing Bacon's punishment. See id. (requiring finding that act committed beyond a reasonable

doubt). Since Bacon does not now challenge that underlying finding, since our law expressly permits


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the trial court's consideration of such evidence, and since Blakely is entirely inapplicable to the

procedural and factual posture of this case, we find no merit in Bacon's sole point of error.

       We affirm the trial court's judgment.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:        April 2, 2008
Date Decided:          April 3, 2008

Do Not Publish




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