                             COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH

                                NO. 02-13-00254-CR


CLINTON RAY SANDERS                                                APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE


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           FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                                    OPINION

                                      ----------

      In two points that concern the trial court’s admission of evidence over his

objections, appellant Clinton Ray Sanders appeals his felony conviction and ten-

year sentence for assault against someone with whom he had a dating

relationship. 1 We affirm.




      1
       See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(A) (West Supp. 2013).
                               Background Facts

      In October 2012, appellant was dating Krystle, who was living with her

sister and appellant’s nephew. One night that month, appellant and Krystle went

to see appellant’s brother, Roy.     Appellant, Krystle, and Roy drank alcohol

together at Roy’s residence before driving Krystle’s car to a bar. At the bar,

appellant, Krystle, and Roy all drank beer. They left the bar at around midnight.

      On their way to Krystle’s sister’s house, Krystle heard appellant mumble

something under his breath, stopped the car in the middle of a roadway, and said

something to him. Appellant responded by hitting Krystle’s left eye with a closed

fist. Roy, who was sitting in the back seat, put his hand around appellant and

asked appellant what he was doing. Appellant got out of the car, opened the

door to the back seat, punched Roy, and walked away.           Roy’s head began

bleeding.

      Krystle and Roy traveled to Krystle’s sister’s house. Krystle’s sister told

Krystle to go to a hospital, and she did so. While there, Krystle met with nurses,

doctors, and a sheriff’s deputy. The deputy took photographs of Krystle’s eye,

which had become swollen and discolored. 2 Krystle and Roy went to the sheriff’s

office a few days after the assault to give statements. Photographs taken at that



      2
        Krystle testified that while she was at the hospital, she was experiencing
“probably one of the worst pains [she had] felt.” The deputy who took the
photographs at the hospital opined that Krystle’s injuries were “fresh.” He also
testified that Krystle appeared to be intoxicated.


                                        2
time showed continued swelling and bruising on Krystle’s eye along with blood

stains in Krystle’s car.

      Upon appellant’s arrest, he agreed to give an interview concerning

Krystle’s assault allegation. During the interview, he admitted that he had been

to a bar with Krystle and Roy, that he had become intoxicated on the same night,

and that he had gotten into an argument with Krystle that night. But appellant

said that he did not know about the source of Krystle’s black eye and did not

remember hitting her.

      A grand jury indicted appellant with assaulting Krystle.      The indictment

alleged that appellant had been previously convicted of assault against a

member of his family or household. Appellant retained counsel, elected the jury

to assess his punishment if he was convicted, filed a sworn application for

community supervision, and pled not guilty. After receiving the parties’ evidence

and arguments, the jury found appellant guilty. In the punishment phase of the

trial, the State proved that appellant had several prior misdemeanor convictions,

and appellant produced testimony from his son and his daughter. 3 The jury

assessed     appellant’s   punishment    at   ten   years’   confinement    without

recommending community supervision, and the trial court sentenced him

accordingly. Appellant brought this appeal.




      3
       Appellant’s son was the victim of appellant’s prior assault conviction.


                                         3
 The Admission of Extraneous Offense Evidence in the Punishment Phase

      In his first point, appellant argues that the trial court erred during the

punishment phase of his trial when it allowed the State to introduce evidence of a

fifteen-year-old “unprosecuted sexual assault allegation against [a]ppellant by a

[twelve-year-old girl] who now denies it ever happened.” We review a trial court’s

admission of evidence over a defendant’s objection for an abuse of discretion.

Sandone v. State, 394 S.W.3d 788, 791 (Tex. App.—Fort Worth 2013, no pet.);

see Moreno v. State, 1 S.W.3d 846, 861 (Tex. App.—Corpus Christi 1999, pet.

ref’d) (“The trial court has broad discretion in determining admissibility of

evidence at the punishment phase of trial.”). An abuse of discretion occurs when

a trial court’s decision is so clearly wrong as to lie outside the zone of reasonable

disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1991) (op. on reh’g); Sandone, 394 S.W.3d at 791.

      Appellant called his daughter to testify in the punishment phase of the trial.

On direct-examination, the daughter testified, among other facts, that she had not

seen appellant engage in family violence, that appellant had become depressed

and had started drinking when he divorced his wife, and that appellant had

various physical problems that impacted his ability to work. At the end of her

direct-examination testimony, the daughter asked the jury to place appellant on

community supervision.

      At the beginning of its cross-examination, the State asked appellant’s

daughter about a written statement that she had made concerning appellant in


                                         4
1998, when she was twelve years old. When the State offered the statement for

admission, appellant objected on the grounds that he had not received notice of it

and that its admission would be more prejudicial than probative.            Although

appellant’s daughter proclaimed outside of the jury’s presence that the statement

was “a lie,” the trial court overruled appellant’s objection and admitted the

statement. The statement, which appellant’s daughter testified that she did not

write (but did not dispute that she adopted), read,

             Well about 2 weeks ago I [fell] asleep on the couch and my
      daddy came up and . . . sat by me and then I felt a poke on my
      vagina and so I got up and use[d] the restroom and thought well he
      did it accidently and [fell] back [asleep] and then I felt something
      rubbing on my vagina and slapped his hand off he did it again so I
      sat up and he said “Let me finish I promise it will feel good[.]” . . . I
      said no and I ran to my room and locked the door and then he came
      back there and knocked on the door and said let me in and I said . . .
      no and I’ve been scared to tell [anybody] because I was scared.

      After a prosecutor published the statement to the jury by reading it, on

redirect-examination, appellant’s daughter testified that she had “made up” the

sexual allegation against appellant because she had wanted her mother and

father to get a divorce. Unambiguously, the daughter testified that the incident

described in the statement did not happen.

      “Code of Criminal Procedure Article 37.07, Section 3(a) governs the

admissibility of evidence during the punishment phase of a non-capital trial.”

Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004) (footnote omitted).

Article 37.07 states that as relating to a defendant’s punishment, a trial court may

admit evidence of “any matter the court deems relevant to sentencing,” including


                                         5
the defendant’s character or evidence of an extraneous crime or bad act that is

shown beyond a reasonable doubt to have been committed by the defendant.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2013); see also

Arnolie v. State, No. 01-11-00348-CR, 2012 WL 1143591, at *4 (Tex. App.—

Houston [1st Dist.] Apr. 5, 2012, no pet.) (mem. op., not designated for

publication) (“By definition, evidence admitted under article 37.07, section 3 need

not be relevant to appellant’s guilt for the offense for which he has already been

convicted.”). As the court of criminal appeals has explained,

      The Legislature has expressly provided that “relevant” punishment
      evidence includes, but is not limited to, both character evidence in
      the form of opinion testimony as well as extraneous-offense
      evidence. Because there are no discrete fact issues at the
      punishment phase of a non-capital trial, we have ruled that the
      definition of “relevant,” as stated in Rule 401 of the Texas Rules of
      Evidence, does not readily apply to Article 37.07. What is “relevant”
      to the punishment determination is simply that which will assist the
      fact finder in deciding the appropriate sentence in a particular case.
      When the jury assesses punishment, it must be able to tailor the
      sentence to the particular defendant, and relevance is simply “a
      question of what is helpful to the jury in determining the appropriate
      sentence for a particular defendant in a particular case.”

Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008) (emphasis added)

(footnotes omitted) (quoting Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim.

App. 2006)).   Evidence of a defendant’s prior, extraneous offenses may be

admissible under article 37.07 to show whether a defendant is a good candidate

for community supervision. See id. at 296.




                                        6
      On appeal, appellant first argues that the trial court should not have

admitted his daughter’s statement because he did not receive notice of the

State’s intent to offer it before trial. Article 37.07 states,

      On timely request of the defendant, notice of intent to introduce
      evidence under this article shall be given in the same manner
      required by Rule 404(b), Texas Rules of Evidence.[4] . . . The
      requirement under this subsection that the attorney representing the
      state give notice applies only if the defendant makes a timely
      request to the attorney representing the state for the notice.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g); see Mitchell v. State, 982 S.W.2d

425, 427 (Tex. Crim. App. 1998) (holding that the State was not obligated to give

notice under article 37.07 because the defendant filed a motion for the court to

order the State to give notice rather than directly asking the State to give notice);

President v. State, 926 S.W.2d 805, 807–08 (Tex. App.—Austin 1996, pet. ref’d)

(holding similarly); see also Ewing v. State, 157 S.W.3d 863, 867 (Tex. App.—

Fort Worth 2005, no pet.) (“[R]egardless of any interpretation the State may have

assigned to Appellant’s discovery motion, the motion did not comply with the

requirements of article 37.07. As a result, the State had no duty to provide notice

of its intent to present evidence of extraneous crimes or bad acts.”).

      Appellant states in his brief that he objected to lack of notice, but he does

not direct us to any part of the record in which he requested notice of extraneous

offenses before the State offered his daughter’s statement, and we have found

      4
        Rule 404(b), like article 37.07, expressly conditions the State’s obligation
to give notice of extraneous offenses upon a defendant’s request for notice. See
Tex. R. Evid. 404(b).


                                            7
none. Thus, based on the plain language of article 37.07 and on precedent

applying the notice provision of that article, we conclude that appellant was not

entitled to notice of the State’s intent to introduce his daughter’s statement, and

we overrule that part of his first point.

      Next, citing rule of evidence 403, appellant argues that the evidence of his

daughter’s statement was more prejudicial than probative. Rule 403 states that

relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.       Tex. R. Evid. 403.     Even if

punishment evidence is otherwise admissible under article 37.07, it may be

excludable under rule 403. See Rogers v. State, 991 S.W.2d 263, 266 (Tex.

Crim. App. 1999) (applying rule 403 and emphasizing that “it is unfair prejudice

that must substantially outweigh the probative value of the evidence to render

relevant evidence inadmissible”).

      A rule 403 analysis should include, but is not limited to, considering the

probative value of the evidence; the potential of the evidence to impress the jury

in some irrational, indelible way or to suggest a decision on an improper basis;

the time the proponent needs to develop the evidence; and the proponent’s need

for the evidence.     Reese v. State, 33 S.W.3d 238, 240–41 (Tex. Crim. App.

2000); see Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006).

“When a trial court tests and determines that the balance is a close one, it should

favor admission, in keeping with the presumption of admissibility of relevant




                                            8
evidence.” Cox v. State, 931 S.W.2d 349, 357 (Tex. App.—Fort Worth 1996),

pet. dism’d, 951 S.W.2d 5 (Tex. Crim. App. 1997).

      We recognize that evidence relating to a sexual offense with a child and to

an offense that is remote in time to the charged offense carries the potential for

unfair prejudice. But the evidence concerning appellant’s daughter’s statement

was relevant because it helped define appellant’s character for the jury; showed

another example of a criminal act that appellant may have committed against a

member of his family or household; and helped strengthen the establishment of a

pattern of serious, continuing criminal conduct that may have informed the jury’s

decision about whether to place appellant on community supervision, as his

daughter had requested.     See McClure v. State, 269 S.W.3d 114, 120 (Tex.

App.—Texarkana 2008, no pet.) (“A person’s history of violating the law is

undoubtedly a relevant factor for a jury to consider when assessing a sentence

because it relates to the defendant’s character.”).         Although the statement

described an event that occurred approximately fifteen years before the trial of

appellant’s   assault   against   Krystle, 5   the   statement   was   made   within

approximately two weeks of the event that it described, while the event was

apparently fresh in appellant’s daughter’s mind. The State spent little time in


      5
       Section 3(a)(1) of article 37.07 does not contain a time limitation for the
admission of extraneous offenses or bad acts relating to a defendant’s
punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1); Fowler v.
State, 126 S.W.3d 307, 311 (Tex. App.—Beaumont 2004, no pet.) (“The statute
does not provide a time restriction.”).


                                           9
front of the jury asking about the statement.     And although the effect of the

evidence on the jury may have been indelible, it was not irrational, given that the

legislature has expressly permitted evidence of unadjudicated extraneous crimes

and bad acts to allow juries to tailor appropriate punishments. See Tex. Code

Crim. Proc. Ann. art. 37.07, § 3(a)(1); Fowler, 126 S.W.3d at 311 (“Evidence of

defendant’s prior assaults certainly had a tendency to cause a jury to increase

his punishment. But that was its legitimate purpose.”).

      To the extent that appellant argues on appeal that the trial court should not

have admitted the statement because his daughter had retracted the allegation

contained in the statement or because the allegation was not proven beyond a

reasonable doubt to be true, appellant did not make such an objection in the trial

court. Our sister courts have distinguished complaints about the truthfulness of

an extraneous offense from complaints related to the balancing of such an

offense’s probative value and unfair prejudice. See, e.g., Chambers v. State, No.

01-10-00317-CR, 2011 WL 2652252, at *1–2 (Tex. App.—Houston [1st Dist.]

July 7, 2011, pet. ref’d) (mem. op., not designated for publication) (holding that

an objection under rule 403 did not preserve error on an appellate complaint that

the State did not prove an extraneous offense beyond a reasonable doubt as

required by section 3(a)(1) of article 37.07); Kucel v. State, No. 11-97-00071-CR,

1998 WL 34193983, at *1 (Tex. App.—Eastland June 4, 1998, no pet.) (not

designated for publication) (same). Appellant did not make an objection under

the beyond-a-reasonable-doubt standard of article 37.07, section 3(a)(1), nor did


                                        10
he inform the trial court that he was linking his rule 403 objection to an argument

that the State had not adequately proved the extraneous offense contained in the

statement.

      Also, to the extent that the trial court may have been put on notice before

admitting the statement that the statement’s probative value was reduced by the

fact that appellant’s daughter had retracted it, the court could have reasonably

concluded that any unfair prejudice would be similarly reduced by her availability

to testify that the event described in the statement did not happen. In other

words, before admitting the statement, the trial court could have rationally

considered that by comparing appellant’s daughter’s statement to her recanting

testimony, the jury, as the sole judge of her credibility, 6 would be equipped to

evaluate and confirm whether the statement was probative of the facts it

contained and was therefore pertinent to assessing appellant’s punishment. 7

See Gigliobianco, 210 S.W.3d at 641 (stating that in its balancing under rule 403,

a trial court may consider whether the evidence could be given “undue weight by

a jury that has not been equipped to evaluate the probative force of the

evidence”) (emphasis added).

      6
       See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979).
      7
        In its charge on punishment, the trial court instructed the jury that it could
not consider evidence of extraneous crimes for any purpose unless it found
beyond a reasonable doubt that appellant had committed them. In the event that
the jury believed the recantation and disregarded the statement, the statement’s
admission could not have been harmful. See Tex. R. App. P. 44.2(b); Barshaw
v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011).


                                         11
       For all of these reasons, we cannot conclude that the trial court acted

outside the zone of reasonable disagreement when it implicitly determined 8 that

the probative value of admitting appellant’s daughter’s statement was not

substantially outweighed by the danger of any unfair prejudice. Therefore, we

cannot say that the trial court abused its discretion by admitting the evidence.

See Tex. R. Evid. 403; Sandone, 394 S.W.3d at 791; see also Bain v. State, 115

S.W.3d 47, 50 (Tex. App.—Texarkana 2003, pet. ref’d) (holding that a trial court

did not err by admitting evidence of a defendant’s sexual offense with a child in

the punishment phase of an aggravated robbery trial); Rodriguez v. State, No.

03-95-00734-CR, 1996 WL 548156, at *2 (Tex. App.—Austin Sept. 25, 1996, no

pet.) (not designated for publication) (holding that a trial court did not abuse its

discretion by admitting punishment evidence of a sexual offense committed by

the defendant even though the alleged victim had recanted).           We overrule

appellant’s first point.

                           Confrontation, Hearsay, and Harm

       In his second point, appellant contends that the trial court erred by

admitting a recording of conversations between a 911 operator and a hospital

employee who was responding to Krystle’s injuries. During the guilt phase of

       8
          Appellant argues that the trial court “seemed to gloss over a balancing
test, if it did one at all. It did not state that one had been done.” But we presume
that the trial court conducted a balancing test under rule 403 even though the trial
court did not state on the record that it did so. Kappel v. State, 402 S.W.3d 490,
494 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Luxton v. State, 941 S.W.2d
339, 343 (Tex. App.—Fort Worth 1997, no pet.).


                                         12
appellant’s trial, the State sought the admission of its Exhibit 31, which

comprised recordings of two short conversations between Dotti, who was an

employee at the hospital, and a 911 operator. Appellant objected to the exhibit’s

admission on the grounds that it contained hearsay 9 and that its admission would

violate his right to confrontation. 10 The trial court overruled appellant’s objection

and admitted the exhibit.     The exhibit, which the State played for the jury,

contains a statement from Dotti that an assault had occurred when Krystle was

punched in her face by her boyfriend.

      On appeal, appellant contends that the trial court erred by admitting

Exhibit 31 because it contained Dotti’s testimonial evidence and because Dotti

was unavailable for cross-examination at trial. Citing a decision from the United

States Supreme Court that resolved two related cases, appellant argues that

Dotti’s statements to the 911 operator were testimonial because she was

“reporting what had already happened and not what was happening.” See Davis

v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273–74 (2006).

      When a trial court admits evidence that violates hearsay rules or a

defendant’s right of confrontation, we must determine whether the admission

caused harm. See Tex. R. App. P. 44.2 (setting forth the standards of harm

required for reversal based on constitutional and nonconstitutional errors); Davis


      9
       See Tex. R. Evid. 801(d), 802.
      10
          See U.S. Const. amend. VI.


                                         13
v. State, 268 S.W.3d 683, 706–07 (Tex. App.—Fort Worth 2008, pet. ref’d) (“In

applying a rule 44.2(a) harm analysis to hearsay erroneously admitted over the

defendant’s Confrontation Clause objection, the Court of Criminal Appeals has

instructed us that if the verdict or punishment would have been the same absent

the error then the error is harmless.”) (citing Clay v. State, 240 S.W.3d 895, 904

(Tex. Crim. App. 2007)); see also Stovall v. State, No. 02-11-00174-CR, 2012

WL 4010418, at *11 (Tex. App.—Fort Worth Sept. 13, 2012, pet. ref’d) (mem.

op., not designated for publication) (describing the harm analysis applicable to

the improper admission of testimonial statements). If error is constitutional, such

as the violation of a defendant’s right to confrontation, we apply rule 44.2(a) and

reverse unless we determine beyond a reasonable doubt that the error did not

contribute to appellant’s conviction or punishment. Tex. R. App. P. 44.2(a).

      In applying the “harmless error” test for constitutional error, our primary

question is whether there is a “reasonable possibility” that the error might have

contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.

App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). Our harmless

error analysis should not focus on the propriety of the outcome of the trial;

instead, we should calculate as much as possible the probable impact on the jury

in light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d 103,

119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). We “should take

into account any and every circumstance apparent in the record that logically

informs an appellate determination whether ‘beyond a reasonable doubt [that


                                        14
particular] error did not contribute to the conviction or punishment,’” and if

applicable, we may consider the nature of the error, the extent that it was

emphasized by the State, its probable collateral implications, and the weight a

juror would probably place on the error. Snowden v. State, 353 S.W.3d 815, 822

(Tex. Crim. App. 2011) (quoting Tex. R. App. P. 44.2(a)).

      In his brief, appellant correctly summarizes what Exhibit 31 conveyed as

“being that [Krystle] had been assaulted by her boyfriend, and where it occurred.”

Given the uncontroverted other, unobjected-to evidence establishing these facts

and considering appellant’s counsel’s concessions in his opening statement and

in his closing argument, we cannot conclude that the admission of Exhibit 31,

even if erroneous, caused any harm. Krystle plainly testified at trial that appellant

had hit her with a closed fist in her eye; she stated, “I felt as if I was being hit like

a grown man would be hit.” The jury received several photographs showing the

extent of Krystle’s injury to her left eye hours after the offense and days after the

offense. Also, the jury received photographs of Krystle’s blood-splattered car.

Next, the trial court admitted Krystle’s medical records from her visit to the

hospital after the assault. Along with containing other facts, the records labeled

Krystle’s admitting diagnosis as an alleged assault and stated that she had

complained of being punched in the face by her boyfriend. 11



      11
        In other words, the unobjected-to medical records contained the same
essential information as Dotti’s 911 conversations.


                                           15
      Finally, appellant admitted at trial that he had punched Krystle.           In

appellant’s opening statement, counsel stated,

      Listen to the explanation, and especially of [Krystle], of why this
      whole thing and how this whole thing happened. And look at the
      mental states of . . . all the parties involved. That’s just what I want
      you to keep your eyes open for. Obviously she got hit. There’s
      more to it than that, and I’m going to ask you to keep your eyes open
      for the more part. [Emphasis added.]

Similarly, in his closing argument, appellant’s counsel stated, “My client basically

can’t deny that he hit Krystle . . . .” Counsel focused the closing argument upon

whether Krystle might have provoked appellant and whether appellant acted with

the requisite mental state for assault. 12 Dotti’s recorded statements in Exhibit 31

could not have impacted the answers to either of those questions.

      Thus, assuming, without deciding, that the trial court violated appellant’s

right of confrontation by admitting Exhibit 31, we hold beyond a reasonable doubt

that the error could not have contributed to his conviction or punishment. See

Tex. R. App. P. 44.2(a); Davis, 268 S.W.3d at 706–07. Likewise, we necessarily

conclude that the record does not establish harm under the more relaxed


      12
        Counsel argued in part,

              We have no evidence of his state of mind at the time this
      happened, why he did this. If anybody should have, that is [Krystle],
      and she -- she either didn’t or couldn’t give it to you. And that’s
      critical, because if . . . he didn’t know what he was doing at the
      moment, it’s not a crime. That’s the bottom line. Whether he was
      waking from a dream or suffering from some 30-second insanity,
      who cares, things happen. But that’s where – that’s where I’m left. I
      don’t have a reason, I don’t have a state of mind for Mr. Sanders.


                                        16
standard for nonconstitutional error, which applies to appellant’s hearsay

objection. See Tex. R. App. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.

Crim. App. 1997); Davis, 268 S.W.3d at 709. We overrule appellant’s second

point.

                                    Conclusion

         Having overruled both of appellant’s points, we affirm the trial court’s

judgment.


                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

GARDNER, J., filed a dissenting opinion.

PUBLISH

DELIVERED: January 30, 2014




                                        17
