Opinion filed August 31, 2012




                                            In The


   Eleventh Court of Appeals
                                         __________

                                   No. 11-11-00259-CR
                                       __________

                         RYAN ADAM MEIGHEN, Appellant

                                               V.

                                STATE OF TEXAS, Appellee


                           On Appeal from the 29th District Court

                                   Palo Pinto County, Texas

                                 Trial Court Cause No. 14385


                           MEMORANDUM OPINION
       Ryan Adam Meighen pleaded guilty to the offense of forgery in a bench trial before the
court. TEX. PENAL CODE ANN. § 32.21 (West 2011). Appellant had attempted to use a forged
$100 bill to pay for shoes in a Mineral Wells store. The trial court assessed a sentence of
confinement for five years in the Institutional Division of the Texas Department of Criminal
Justice and a fine of $3,000. Appellant raises two points of error on appeal: (1) the trial court
abused its discretion when it took into consideration during punishment an unadjudicated offense
that had been dismissed and (2) the trial court violated due process by failing to provide an
impartial forum for the assessment of punishment. We affirm.
                                         Background Facts
          On September 6, 2011, appellant’s case was called for trial. Prior to jury selection,
appellant waived his right to a jury trial and entered his plea of guilty to the offense of intentional
possession with intent to pass a forged $100 bill. See Section 32.21. He was duly admonished,
and the trial court accepted his plea.
          On September 16, 2011, the trial court continued the trial. The court took note of the
prior proceedings on September 6, reviewing the steps taken in the prior proceeding to make
certain that appellant’s guilty plea was voluntarily made. The State then presented its evidence:
the guilty plea memorandum signed by appellant, the arrest report of the officer at the Mineral
Wells Police Department, and the counterfeit $100 bills recovered at the time of appellant’s
arrest.
          According to the arrest report, appellant and William Bell Harris had attempted to pass a
forged $100 bill at Bealls department store in Mineral Wells. Harris identified himself to the
police officer, but appellant gave a false name. Appellant confirmed his correct name when the
officer found appellant’s driver’s license in appellant’s wallet.         Appellant had four more
counterfeit $100 bills in his wallet. Harris did not have any other forged bills. The bills
appeared to have originally been $5 bills that had been altered; all the counterfeit bills had the
same serial number. Because the officers found Dairy Queen cups and a bag in their car, the
officers contacted the Dairy Queen in Mineral Wells and learned that two white males had given
it a counterfeit $100 bill.
          After the introduction of the exhibits, the State rested. Appellant testified in his own
behalf. He first acknowledged that he had filed a written application to the court for community
supervision and had asked the court to defer an adjudication of guilt. Since his arrest, appellant
had been working in the oilfield. At the time of the hearing, he worked for Patterson Energy as a
driller in New Mexico, working seven days on and seven days off. Appellant had married and
had a little boy who was eighteen months old. He explained how a conviction would adversely
affect his opportunities for advancement with the company. At the time of trial, he had an
opportunity to be promoted to rig manager. He testified that the company had posted a surety in
the amount of $2 million to protect the company if he made a mistake as a driller. Appellant
concluded by stating that he would meet and comply with any terms of probation ordered by the
court.

                                                  2
       The State only asked four questions during cross-examination. They concerned his
probation for an earlier misdemeanor DWI. Appellant said that he did well on probation, that he
would benefit from probation in this case, and that he would follow all the rules if given
probation.
       The trial court then began questioning appellant. The court first asked appellant how the
counterfeit bills came into existence. Appellant stated that he had worked for a man in Sanger
who owed him $1,400; the man had paid him with six $100 counterfeit bills. The trial court then
asked the State if anything had become of the “Dairy Queen incident,” apparently referring to the
$100 counterfeit bill given to the Dairy Queen. The State advised the court that it did not believe
anything had been filed and that appellant may have given the Sanger man’s name to the
detectives when he spoke with the detectives concerning the Dairy Queen incident.
       The trial court asked how many counterfeit bills appellant had received from the man in
Sanger, and appellant replied that he had received six. The court then stated that it was apparent
from the arrest report that appellant knew that the bills were counterfeit and asked if that was
correct. Appellant replied, “I had a suspicion, Your Honor.” The court’s reaction was, “[T]hey
have the same serial number on every bill. Doesn’t take a genius to figure that out.” The court
then asked how the man in Sanger paid for the rest of the work that appellant did, and appellant
said he had not received the balance.
       The trial court then admonished appellant about the seriousness of appellant’s offense
and stated that, if everyone went around passing fake United States currency, it would not take
long for the foundation of our economic system to crumble. The court then asked about Harris,
and appellant told the court that Harris was in confinement. The State informed the court that
Harris had pleaded guilty and received a sentence of confinement for five years. And appellant’s
attorney added that Harris also had a prior felony conviction.
       At that point, the court asked appellant, “What became of your charge for aggravated
sexual assault of a child?” Appellant replied that it was dismissed. The court asked why, and
appellant stated, “It was bad allegations.” The court then asked, “How old was the alleged
victim?” Appellant responded, “16.”
       The court pointed out that appellant’s earlier probation had to be amended twice.
Appellant explained that, while he was on probation for the DWI conviction in 2006, he had lost
his employment and had to have two extensions before he could complete his probation. The

                                                 3
court stated that it was not certain if appellant fully understood that forgery of United States
currency was a serious offense. Appellant responded that he had made a mistake. The court
agreed and found appellant guilty of the offense alleged in the indictment.
       The court then asked if the State had any additional evidence concerning punishment, and
the State stated that it did not. Appellant also had no additional evidence.
                                             Analysis
       Appellant’s two points of error center on the trial court’s questions concerning
appellant’s arrest for aggravated sexual assault. Prior to trial, the State’s notice of intent to
introduce evidence of other crimes, wrongs, or acts (adjudicated or unadjudicated) during
guilt/innocence and punishment phases included only the 2008 conviction of appellant for
driving while intoxicated. The State had not listed the aggravated sexual assault charge as an
extraneous offense, and there is nothing in the record providing a basis for the trial court’s
questions. We assume that the charge had been dismissed, otherwise the State would have listed
it in the notice. Although appellant states that the trial court’s inquiry concerning appellant’s
arrest occurred during the punishment phase of the trial, the court’s inquiry occurred during the
continuation of the guilt/innocence phase.
       Appellant’s points are that the trial court abused its discretion in considering the
unadjudicated offense of aggravated sexual assault of a child when assessing appellant’s
punishment and that the trial court violated due process when it deprived appellant of an
impartial forum on punishment. Appellant points out that he had no prior felony, yet he received
the same punishment as Harris. In addition, appellant had married, had worked hard to be a
productive citizen, and now had a child to support. The State responds that there is no evidence
in the record that the trial court considered appellant’s prior arrest when assessing punishment.
       Although the State is correct, the trial court erred when it went outside the evidence in the
record in its questioning of appellant. Unadjudicated extraneous offenses cannot be considered
by the factfinder during the punishment phase unless the State proves beyond a reasonable doubt
that the acts or offenses are attributable to the defendant       TEX. CODE CRIM. PROC. ANN.
art. 37.07, § (3)(a) (West Supp. 2012); see Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App.
2000). The same is true during the guilt/innocence phase. Although neither TEX. PENAL CODE
ANN. § 31.03(c)(1) (West Supp. 2012) nor TEX. R. EVID. 404(b) explicitly provides that
extraneous offense evidence at the guilt/innocence phase must be proven beyond a reasonable

                                                 4
doubt, it is well established that such a requirement is implied. George v. State, 890 S.W.2d 73,
76 (Tex. Crim. App. 1994); Higginbotham v. State, 356 S.W.3d 584, 591 (Tex. App.—
Texarkana 2011, pet ref’d). Error in admitting evidence concerning extraneous offenses is
reviewed under the standard for nonconstitutional error contained in TEX. R. APP. P. 44.2(b).
Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). Rule 44.2(b) provides that an
appellate court must disregard a nonconstitutional error that does not affect a criminal
defendant’s substantial rights.
       Under Rule 44.2, an appellate court may not reverse for nonconstitutional error if the
court, after examining the record as a whole, has fair assurance that the error did not have a
substantial and injurious effect or influence in determining a defendant’s conviction or
punishment. See Anderson v. State, 182 S.W.3d 914, 919 (Tex. Crim. App. 2006); Aguirre-
Mata v. State, 125 S.W.3d 473, 474 (Tex. Crim. App. 2003).
       Appellant’s argument that the trial court took into consideration on punishment
appellant’s arrest and charge of sexual assault, which was dismissed, is only a speculative
assumption. There is nothing in the record supporting that assumption. The trial judge in this
case was experienced. The standard of admissibility for extraneous offense evidence — proof
beyond a reasonable doubt — was well established. Appellant requested community supervision
and deferred adjudication. It is clear from the record that the trial court considered the positive
steps appellant had made in his life since his arrest for this offense, but was uncertain that
appellant understood the seriousness of his offense.
       In appellant’s second point of error, he argues that Texas courts have found that a
defendant’s due process rights are violated when the full range of punishment is not considered.
There is nothing in this record to demonstrate that the trial court did not consider the full range of
punishment. The court explicitly acknowledged to appellant that he was being asked to consider
community supervision and deferred adjudication. The court’s punishment was within the range
of punishment for a third-degree felony offense: two to ten years’ confinement and a fine not to
exceed $10,000.
       The cases cited by appellant do not support his argument that he was denied due process.
Jefferson v. State, 803 S.W.2d 470 (Tex. App.—Dallas 1991, pet. ref’d), involved a defendant
who had been placed on deferred adjudication. The State filed a motion to proceed with
adjudication of guilt because of the defendant’s failure to pay fees and to report. The trial court,

                                                  5
over objection, questioned the defendant and reminded him that the court had warned him earlier
that he would be assessed the maximum punishment of twenty years if he did not report and pay
his probation fees. The court then found the defendant guilty and sentenced him to twenty years’
confinement. The court of appeals reversed and remanded the cause, holding that the trial court
had violated the defendant’s due process rights by failing to consider the full range of
punishment for the offense charged when he imposed a predetermined punishment period. Id. at
472.
       Earley v. State, 855 S.W.2d 260 (Tex. App.—Corpus Christi 1993, pet. dism’d), also
cited by appellant, involved a similar error by the same trial judge. The defendant had been
placed on deferred adjudication on his burglary charges and on shock probation for his theft
conviction. The State moved to revoke the defendant’s probation in the theft case and moved to
adjudicate his guilt in the two burglary cases after the defendant committed a new offense.
When the trial judge had placed the defendant on probation, the judge had warned the defendant
that if he violated his probation the defendant probably would be given a punishment at the top
level of the punishment range. And, when the defendant appeared for the revocation and
adjudication hearing, the judge told the defendant, “I’m just upset that you did a third-degree
felony. I would rather have seen you with a first-degree, because I would like to give you life.”
855 S.W.2d at 262. The court then assessed the maximum years of imprisonment for each
offense and ordered the sentences to run consecutively.
       Appellant’s two points of error are overruled.
                                       This Court’s Ruling
       The judgment of the trial court is affirmed.




                                                             TERRY McCALL
                                                             JUSTICE
August 31, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




                                                6
