Affirmed and Opinion filed April 16, 2020.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00320-CR

                   SHANNON RAY SINGLETON, Appellant

                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 506th District Court
                            Grimes County, Texas
                         Trial Court Cause No. 18211


                                     OPINION

      Shannon Ray Singleton appeals his conviction for continuous sexual abuse
of a young child, contending that (1) the trial court abused its discretion in
admitting evidence of an extraneous offense because the State failed to give notice
of its intention to introduce the evidence, and (2) the statute requiring notice of the
State’s intention to introduce the evidence is unconstitutional as applied to him.
We affirm.
       At trial, after the jury was empaneled but before the guilt-innocence phase,
the State asked for a hearing outside the presence of the jury for the trial court to
determine, in accordance with article 38.37 of the Code of Criminal Procedure, the
admissibility of extraneous offense evidence.1 At the hearing, the State presented
the following documents: an indictment charging appellant with the felony offense
of indecency with a child in a prior case, an order deferring adjudication of
appellant’s guilt in that case, and appellant’s fingerprint card taken after his arrest
for the offense in this case. Defense counsel objected on the grounds that the
defense had not been provided copies of the documents prior to trial and they had
not been authenticated. The trial court found that the evidence was “sufficient . . .
to go forward to a jury.”

       During the guilt-innocence phase of trial, the State offered the three exhibits.
Defense counsel reurged his prior objections to the documents and objected to the
constitutionality of article 38.37 “under the U.S. and Texas Constitutions to both
due process and due course of law.” The trial court overruled the objections and
admitted the three exhibits.

       I.      Complaint Regarding Lack of Notice Waived and Notice Given

       Appellant contends in his first issue that the trial court abused its discretion
in admitting the documents because the State failed to give appellant adequate
notice of its intention to introduce the evidence under article 38.37, which requires

       1
         When a defendant is on trial for certain sexual offenses, evidence that the defendant has
committed a separate sexual offense may be admissible at trial 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. art. 38.37, § 2(b); Harris v. State, 475
S.W.3d 395, 398 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). But before the evidence
“may be introduced,” the trial court must conduct a hearing and determine whether the evidence
likely to be admitted at trial will be adequate to support a jury finding “that the defendant
committed the separate offense beyond a reasonable doubt.” Tex. Code Crim. Proc. art. 38.37,
§ 2-a; Harris, 475 S.W.3d at 398.

                                                2
the State to give a defendant notice of the State’s intention to introduce evidence of
certain separate offenses committed by the defendant, including indecency with a
child, not later than the 30th day before trial. Tex. Code Crim. Proc. art. 38.37
§§ 2(1)(C), 3; Pena v. State, 554 S.W.3d 242, 248 (Tex. App.—Houston [14th
Dist.] 2018, pet. ref’d). We review a trial court’s decision to admit or exclude
evidence for abuse of discretion. Pena, 554 S.W.3d at 248. If the trial court’s
ruling falls within the zone of reasonable disagreement, we will affirm that
decision. Id.

      As an initial matter, appellant did not object to the admission of the evidence
on the basis that the State failed to give him notice under article 38.37. He objected
only to the State’s failure to produce the offered exhibits before trial. To preserve a
complaint for appellate review, the complaining party must make a timely
objection to the trial court that states the grounds with sufficient specificity to
make the trial court aware of the complaint, unless the specific grounds are
apparent from the context. Tex. R. App. P. 33.1(a)(1). The complaining party must
let the trial judge know what he wants and why he thinks he is entitled to it and do
so clearly enough for the judge to understand and at a time when the trial court is
in a position to do something about it. Bekendam v. State, 441 S.W.3d 295, 300
(Tex. Crim. App. 2014); Harris v. State, 475 S.W.3d 395, 400 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d). Although we do not analyze preservation of
error in a hyper-technical manner, the error on appeal must comport with the
objection made at trial. Bekendam, 441 S.W.3d at 300; Harris, 475 S.W.3d at 400.
Here, appellant wholly failed to object to the State’s purported failure to provide
notice under article 38.37 and thus failed to preserve error. See West v. State, 554
S.W.3d 234, 242 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

      Even if appellant had preserved error on this issue, the State provided timely

                                          3
notice of its intention to introduce the evidence three times before trial. The State
filed a document entitled “Discovery Compliance” on July 20, 2017 with a section
headed “Notice of Intent to Use Extraneous Offenses, Prior Bad Acts, and/or Prior
Convictions for any/all purposes in the guilt/innocence and/or punishment phase of
any trial.” After that heading, the State included a list of purported prior bad acts
and a list of prior offenses, including the following statement, “Defendant, in cause
number 951644 in the 185th District Court of Harris County, Texas on October 1,
2003, was convicted of Indecency with a Child.” The cause number in the notice
matches the cause number on the documents admitted at trial. Two more
“Discovery Compliance” documents were filed on January 8 and January 22, 2018,
which both include the same information. Trial began on April 9, 2018, so the
notices were filed well in advance of the 30-day notice required by the statute.

       Appellant concedes the State filed the three notices but complains that the
State did not expressly cite article 38.37. The plain language of the statute does not
require the State to do that, and appellant has pointed to no authority indicating
otherwise. Although including a citation to the statute in the notice might be the
better practice, we note that the purpose of the notice requirement in article 38.37
is “to avoid surprise and to allow the defendant to mount an effective defense.”
Pena, 554 S.W.3d at 249. Appellant has not shown on this record that he was
surprised by the State’s intention to introduce the extraneous offense evidence or
that he was unable to mount an effective defense, particularly in light of the State’s
three notices spelling out its intention to introduce the evidence at trial.2 See id.

       We conclude appellant waived his complaint regarding lack of notice under
       2
          In Pena, we did not decide whether the State was required to include “specific dates,
specific locations, and unique identifying information for each” separate offense in its article
38.37 notice, because we concluded the defendant was not harmed by the omission of such
information when he failed to show how his trial strategy would have been different if he had
been given more specific information. 554 S.W.3d at 249.

                                               4
article 38.37. Despite the waiver, the trial court would not have abused its
discretion in admitting evidence of appellant’s prior extraneous offense under
article 38.37 because appellant received notice of the State’s intention to introduce
the evidence and appellant has not shown that he was surprised or unable to mount
an effective defense. See id. We overrule appellant’s first issue.

      II.    Article 38.37 Not Unconstitutional as Applied

      In his second issue, appellant contends article 38.37 is “unconstitutional as
applied in this case because the procedural safeguards provided in the statute were
not followed.” Appellant argues he was deprived of due process because (1) he
was not given copies of the challenged exhibits until the day of trial and thus he
did not have notice of the State’s intention to offer evidence of his deferred
adjudication for indecency with a child; (2) he received deferred adjudication,
which he contends is not evidence that he “committed a separate offense,” as
required for extraneous offense evidence to be admissible under article 38.37;
(3) the State did not authenticate the exhibits at the article 38.37 hearing through a
sponsoring witness whom appellant could cross-examine; (4) appellant was
deprived of the right to a fair trial by an impartial jury because his attorney did not
have the opportunity “to voir dire over potential juror bias”; and (5) the trial court
should have conducted a balancing test under Rule of Evidence 403 before
admitting the extraneous offense evidence.

      As mentioned, defense counsel objected at trial on the basis that article
38.37 violates “due process and due course of law” under the U.S. and Texas
Constitutions. We presume without deciding that appellant preserved error as to his
“as applied” due process arguments. But see Vasquez v. State, 483 S.W.3d 550,
554 (Tex. Crim. App. 2016) (“[A] general or imprecise objection will not preserve
error for appeal unless ‘the legal basis for the objection is obvious to the court and

                                          5
to opposing counsel.’” (emphasis in original)). Appellant’s brief is not a model of
clarity, but we construe his constitutional challenges to be under the Due Process
Clause except as noted.

      In an as applied constitutional challenge, the claimant “concedes the general
constitutionality of the statute, but asserts that the statute is unconstitutional as
applied to his particular facts and circumstances.” Estes v. State, 546 S.W.3d 691,
698 (Tex. Crim. App. 2018). Because a statute may be valid as applied to one set
of facts and invalid as applied to a different set of facts, a litigant must show that in
its operation, the challenged statute was unconstitutionally applied to him. Lykos v.
Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011). We presume the statute is
valid and the legislature did not act unreasonably or arbitrarily in enacting it. Faust
v. State, 491 S.W.3d 733, 744 (Tex. Crim. App. 2015).

      The Fifth Amendment to the United States Constitution provides that no
person shall be deprived of life, liberty, or property, without due process of law.
U.S. Const. amend. V. The Due Process Clause requires that the State prove,
beyond a reasonable doubt, every element of the crime charged. Byrd v. State, 336
S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307,
316 (1979)). Generally, an accused must be tried only for the offense with which
he is charged and may not be tried for a collateral crime or being a criminal
generally. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). The
essential guarantee of the Due Process Clause is that the government may not
imprison or otherwise physically restrain a person except in accordance with fair
procedures. Long v. State, 742 S.W.2d 302, 320 (Tex. Crim. App. 1987), overruled
on other grounds, Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).

      No Lack of Notice. We have already held that appellant received notice of
the State’s intention to introduce evidence that he committed the separate offense

                                           6
of indecency with a child. Appellant has pointed to no procedural requirement
under article 38.37 requiring the State to provide him with the actual documents
the State intended to offer at trial. Even if that were a requirement, appellant has
not shown how the State’s failure to provide the indictment, order deferring
adjudication (both of which are public records), and fingerprint card deprived him
of notice and thus due process. See Harris, 475 S.W.3d at 402 (holding right to fair
trial under article 38.37 is protected by procedural safeguards including notice). As
discussed, given the notices that the State filed well in advance of trial, appellant
has not shown he was surprised by the State’s intention to introduce the evidence
or that he was unable to mount an effective defense. See Pena, 554 S.W.3d at 249.

      Evidence that Appellant Committed a Separate Offense. Appellant
argues that he was deprived of due process because the State, in presenting the
deferred adjudication order, did not present evidence that appellant “committed a
separate offense” under article 38.37. See Tex. Code Crim. Proc. art. 38.37 § 2(b).
Deferred adjudication is not a finding or verdict of guilt: it is a deferral of a finding
of guilt. Donovan v. State, 68 S.W.3d 633, 636 (Tex. Crim. App. 2002). But the
deferred adjudication order reflects that appellant pleaded guilty to the charge of
indecency with a child. Although a guilty plea standing alone will not support a
conviction, a guilty plea is an admission of guilt. See, e.g., Brewster v. State, 606
S.W.2d 325, 329 (Tex. Crim. App. 1980) (noting legal effect of guilty plea is
admission of guilt); Villanueva v. State, No. 04-07-00599-CR, 2008 WL 3057289,
at *2 (Tex. App.—San Antonio Aug. 6, 2008, no pet.) (mem. op., not designated
for publication) (“A plea of guilty before the court in a felony case constitutes an
admission of guilt but does not authorize a conviction.”); Perez v. State, 129
S.W.3d 282, 288 (Tex. App.—Corpus Christi 2004, no pet.) (“In a guilty plea, an
accused’s stance is ‘I admit my guilt of the accusation.’”); Patterson v. State, 628


                                           7
S.W.2d 518, 520 (Tex. App.—Fort Worth 1982, no pet.) (“[T]he defensive posture
of one who enters a guilty plea is that ‘I admit guilt of the accusation.’”).

      Under the statute, the State was not required to show appellant was
convicted of a separate offense. Tex. Code Crim. Proc. art. 38.37 § 2(b). The State
was required to show only that appellant “has committed a separate offense.” Id.
Cf. Baker v. State, No. 2-02-391-CR, 2003 WL 21101725, at *2 (Tex. App.—Fort
Worth May 15, 2003, pet. ref’d) (mem. op., not designated for publication)
(holding final conviction was not necessary to revoke probation when State alleges
violation of probation by committing offense: “the State must prove only that the
defendant committed an offense, not that the defendant has been finally convicted
of that offense”) (citing Martinez v. State, 635 S.W.2d 762, 767 (Tex. App.—
Corpus Christi 1982, no pet.) (same)). On this record, appellant has not
demonstrated that he was deprived of due process, given that he pleaded guilty to
committing a separate offense.

      Lack of Authentication. Appellant also objected to the exhibits for lack of
authentication. On appeal, he contends that he was deprived of a fair trial because
he did not have an opportunity to cross-examine anyone regarding the exhibits at
the article 38.37 hearing, as the State did not present them through a sponsoring
witness. In Harris, we held that a defendant’s right to a fair trial “is protected by
the . . . procedural safeguards provided in the statute.” 475 S.W.3d at 402. The two
safeguards in the statute are that (1) the trial judge must conduct a hearing outside
the presence of the jury to determine whether the evidence likely to be admitted
will be adequate to support a jury finding that the defendant committed the
separate offense beyond a reasonable doubt; and (2) the State must give notice of
its intent to introduce the extraneous offense evidence at least 30 days before trial.
Id. As noted, both procedures were followed here.

                                           8
      We also said in Harris that defense counsel could challenge “any witness’s
testimony by cross-examination at the hearing.” Id. (emphasis added). We did not
hold, however, that the State is required to put on witnesses at the hearing, and
there is no such requirement in the statute. Indeed, there are many ways to
authenticate a document that do not require witness testimony. See, e.g., Tex. R.
Evid. 803(8) (public records), 901(b)(7) (public records), 902 (self-authenticating
documents). Appellant has not shown on this record that the State’s failure to put
on a sponsoring witness at the hearing to authenticate its exhibits deprived
appellant of due process.3

      Opportunity to Voir Dire on Prior Offense. Appellant further contends
that he was deprived of due process because his attorney did not have an
opportunity to voir dire the jury panel regarding potential bias. In support of his
argument, appellant cited cases involving “[w]hen a juror withholds material
information during voir dire.” See State v. Gutierrez, 541 S.W.3d 91, 99–100 (Tex.
Crim. App. 2017); Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004).
There is no evidence in this case of jurors withholding material information during
voir dire. Given the fact that appellant was notified three times well in advance of
trial that the State intended to offer evidence of the separate offense, we do not
agree under these facts that appellant was deprived of the opportunity to ask jury
panel members about any potential bias based on the State’s intention to offer the
evidence.

      Appellant also asserts he was deprived of his right to a fair trial by an
impartial jury under the Sixth Amendment. See U.S. Const. amend. VI (“In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury . . . .”). Appellant did not object on this basis below and thus

      3
          We note that the exhibits were offered later during trial through a sponsoring witness.

                                                 9
did not preserve error on this issue. Glover v. State, 496 S.W.3d 812, 816 (Tex.
App.—Houston [14th Dist.] 2016, pet. ref’d) (“Almost every right, both
constitutional and statutory, may be forfeited by the failure to object.”).
Accordingly, our analysis is limited to appellant’s due process argument.

      Rule 403 Balancing Not Requested. Lastly, appellant argues the trial court
should have conducted a balancing test under Rule of Evidence 403 as an
additional due process safeguard before admitting the evidence. Rule 403
authorizes a trial court to exclude relevant evidence if its probative value is
substantially outweighed by a danger of unfair prejudice, confusion of the issues,
misleading the jury, undue delay, or needlessly presenting cumulative evidence.
Tex. R. Evid. 403. But appellant did not object under Rule 403 or request a
balancing test. See Distefano v. State, 532 S.W.3d 25, 31 (Tex. App.—Houston
[14th Dist.] 2016, pet. ref’d) (“When evidence of a defendant’s extraneous acts is
relevant under article 38.37, the trial court still is required to conduct a Rule 403
balancing test upon proper objection or request.” (Emphasis added.)). Appellant
has not shown that he was deprived of due process by the trial court’s failure to
conduct a Rule 403 balancing test that he did not request.

      Conclusion. Appellant has not shown on this record that he was deprived of
due process based on the application of article 38.37. We conclude that he has not
met his burden to show the statute is unconstitutional as applied to him. We
overrule his second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                         10
                                      /s/    Frances Bourliot
                                             Justice



Panel consists of Justices Christopher, Bourliot, and Zimmerer.
Publish — TEX. R. APP. P. 47.2(b).




                                        11
