                                    NO. 07-07-0138-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                  OCTOBER 9, 2008
                           ______________________________

                               MARK EDWARD HANSON,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

                  NO. 17,524-B; HON. JOHN B. BOARD, PRESIDING
                       _______________________________

                                      Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Appellant Mark Edward Hanson was convicted of aggravated assault on a public

servant with a deadly weapon. For that offense, he was sentenced to life imprisonment

and fined $2,000. Appellant contests that conviction in four issues by claiming the trial

court abused its discretion by 1) failing to hold a hearing outside the jury’s presence during

the punishment phase on the relevancy of extraneous offenses, 2) denying his request for

an instruction on the lesser-included offense of aggravated assault, 3) failing to instruct the
jury on the law of capital murder and escape which were extraneous offenses that were

admitted during the punishment phase, and 4) overruling his objection to the use of

demonstrative evidence by the State during voir dire. We affirm the judgment of the trial

court.

         Issue 1 - Evidence on Relevancy of Extraneous Offenses

         During the punishment phase of the trial, the State tendered evidence of appellant’s

commission of bad acts, such as his involvement in a capital murder and related kidnaping.

Appellant contends that before such evidence could have been admitted, the trial court

was required, under Texas Rule of Evidence 104(b), to conduct a hearing outside the jury’s

presence and determine whether the crimes were committed and whether appellant was

involved in them. We disagree.

         Rule 104(b) provides that when “the relevancy of evidence depends upon the

fulfillment of a condition of fact, the court shall admit it upon, or subject to the introduction

of evidence sufficient to support a finding of the fulfillment of the condition.” Next, evidence

may be offered at the punishment phase as to any matter the court deems relevant to

sentencing, including evidence of an extraneous crime or bad act that is shown beyond

reasonable doubt to have been committed by the defendant or for which he could be held

criminally responsible regardless of whether he has been previously charged with or finally

convicted of the crime or act. TEX . CODE CRIM . PROC . ANN . art. 37.07 §3(a)(1) (Vernon

Supp. 2007). And, while the trial court is to make a threshold determination of whether the

jury could rationally find beyond a reasonable doubt that an offense or bad act was

committed, the jury actually decides if the State met its burden of proof. Mitchell v. State,

931 S.W.2d 950, 953-54 (Tex. Crim. App. 1996); Nanez v. State, 179 S.W.3d 149, 151-52

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(Tex. App.–Amarillo 2005, no pet.) Moreover, there is no requirement that this threshold

determination be made within the course of a hearing. Welch v. State, 993 S.W.2d 690,

697 (Tex. App.–San Antonio 1999, no pet.) (holding that no hearing was required when the

State made a written proffer of what it intended to prove).

        Here, the trial court stated that it was “very familiar with the capital murder case

having presided over the preliminary matters in that case” and that, based on the court’s

knowledge, it believed the matter was relevant. We cannot see how the court’s knowledge

of the proposed offense garnered through presiding over hearings involving the proposed

offense differs from obtaining knowledge of the offense through a written proffer like that

in Welch.1 In either situation, the trial court received the data it needed to make its

decision.

        We further note that the trial court held a hearing outside the presence of the jury

to assess the voluntariness of appellant’s recorded statement given during the capital

murder investigation and which the State proposed to use at bar. As a result of that

hearing, the statement was found to be voluntary. So too did the trial court ultimately

instruct the jury that it could not consider evidence of any other crimes, wrongs, or acts for

any purpose unless it found and believed beyond a reasonable doubt that appellant

participated in or committed them and even then could only consider those matters for

limited purposes.

        In view of the circumstances before us, we find neither error in nor harm from the

trial court’s conduct and decision. See Mann v. State, 13 S.W.3d 89, 94 (Tex. App.–Austin


        1
         This seem s especially so when appellant does not suggest that the garnering of the inform ation in
the way the trial court did was im perm issible or that the inform ation garnered was deficient.

                                                     3
2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001) (stating that the refusal to hold a

hearing was not harmful since the trial court instructed the jury that it could not consider

the evidence unless it found beyond reasonable doubt that appellant participated in the

extraneous offense). The issue is overruled.

       Issue 2 - Instruction on Lesser-Included Offense

       Next, appellant complains of the trial court’s failure to instruct the jury on the

purported lesser-included offense of aggravated assault. We overrule this issue as well.

       Appellant believes he was entitled to such an instruction because the State

purportedly failed to prove he knew that the uniformed jailer he attacked while in jail was

a public official. Assuming this was true, that circumstance would not entitle him to a

lesser-included offense. Indeed, it is well settled that before an accused is entitled to such

an instruction, there must be evidence illustrating that appellant only committed the lesser

offense. Bignall v. State, 887 S.W.2d 21, 22 (Tex. Crim. App. 1994). That is, there must

be evidence of record affirmatively negating the element present in the greater offense but

absent in the lesser. Morris v. State, No. 07-99-0498-CR, 2000 Tex. App. LEXIS 7181 at

*5 n.1(Tex. App.–Amarillo October 25, 2000, pet. ref’d) (not designated for publication).

It is not enough to simply rely on the State’s failure to prove the particular element. Id. So,

since the latter concept formed the basis of his request, the trial court did not err in denying

it.

       Issue 3 - Jury Instruction on the Elements of Capital Murder and Escape

       In his third issue, appellant contends the trial court should have instructed the jury,

during the punishment phase, about the elements of capital murder and escape so it could



                                               4
decide whether those offenses had been proven beyond a reasonable doubt.2 We

overrule the issue.

        When an extraneous bad act is admitted for consideration during the punishment

phase, the jury is not required to assess whether a statutory crime occurred; rather, its

obligation is to determine, beyond a reasonable doubt, whether that appellant was involved

in the bad act being offered as evidence. Haley v. State, 173 S.W.3d 510, 514-15 (Tex.

Crim. App. 2005). Accordingly, there is no need to instruct the jury on the elements of the

crime or crimes arising from the extraneous bad act. Klock v. State, 177 S.W.3d 53, 63

(Tex. App.–Houston [1st Dist.] 2005, pet. ref’d); Cate v. State, 124 S.W.3d 922, 933 (Tex.

App.–Amarillo 2004, pet. ref’d). So, the trial court did not err in refusing to instruct the jury

on the crimes of capital murder and escape.

        Issue 4 - Demonstrative Evidence During Voir Dire

        Finally, appellant complains of the State’s use of particular displays to help voir dire

the jury panel on punishment. The displays were entitled “Range of Punishment” and

“Repeat or Habitual Offender.” The former described the punishment applicable to the

crime for which appellant was being prosecuted. The latter encompassed the punishment

applicable if one was found guilty of the underlying crime and was also a recidivist felon.

        Both the prosecution and defense are entitled to question the jury venire about the

law applicable to the enhancement of punishment as long as the explanation is

hypothetical and does not inform the jury of any specific allegation in the enhancement

paragraph of the indictment. Jack v. State, 867 S.W.2d 942, 944 (Tex. App.–Beaumont


        2
          In m aking his com plaint, appellant notes that an instruction was given with respect to the law of
parties since there was evidence that appellant’s com panion com m itted the m urder.

                                                     5
1993, no pet.). Furthermore, the legislature entitled the statute defining the law with

respect to enhancing punishment as “Penalties for Repeat and Habitual Felony Offenders.”

See TEX . PEN . CODE ANN . §12.42 (Vernon Supp. 2008). Thus, the prosecution’s exhibit

was simply tracking statutory language. It said nothing about appellant having been

convicted of any prior offense. Nor did it inform the venire members of any particular

allegation in the enhancement paragraph of the indictment. Thus, the prosecutor stayed

within the confines of the law while using the displays. Jack v. State, supra; see Estes v.

State, 873 S.W.2d 771, 773 (Tex. App.–Fort Worth 1994, pet. ref’d) (holding that since the

prosecutor did not portray the accused as an ex-convict, his voir dire was proper). Indeed,

the opinion cited by appellant, Starlling v. State, 693 S.W.2d 47 (Tex. App.–Fort Worth

1985), remanded in part on other grounds, 719 S.W.2d 309 (Tex. Crim. App. 1986), even

found the voir dire appropriate since the prosecutor there made no reference to Starlling

having been previously convicted. Id. at 50-51. So, we overrule the issue.

       Having overruled all of appellant’s issues, the judgment is affirmed.



                                                Brian Quinn
                                                Chief Justice



Publish.




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