                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-338-CR


KENDRICK JACKSON                                                APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

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          FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION 1

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                               I. INTRODUCTION

     Appellant Kendrick Jackson appeals the two consecutive life sentences

he received after he was convicted of two counts of sexual assault, enhanced

by two prior felony convictions. In two issues, Jackson argues that the trial

court erred by admitting an exhibit during punishment that listed fourteen

extraneous offenses because (1) he had not received notice of the State’s


     1
         … See Tex. R. App. P. 47.4.
intent to use the extraneous offenses and (2) the trial court did not require the

jury to make a separate finding that Jackson had committed the fourteen

extraneous offenses. We will affirm.

                                II. B ACKGROUND2

      Shortly after the jury returned a guilty verdict on both counts of sexual

assault, the punishment phase of trial commenced. The State admitted into

evidence without objection a fingerprint card, a judgment from Dallas County

for the felony of aggravated sexual assault with a deadly weapon (a firearm),

and a judgment from Dallas County for the felony of aggravated assault with

a deadly weapon (not a firearm). When the State attempted to admit into

evidence Jackson’s pen packet from the Texas Department of Corrections,

Jackson objected as follows:

      [JACKSON’S ATTORNEY]: There’s parts in here that I object to
      that have nothing to do with the conviction. It has to do with stuff
      that went on at TDC that I ask to be stricken. And to put this into
      the record, I probably need a few more minutes just to keep
      thumbing through it until I figure out which parts to object to.

      [THE STATE]: Judge, what it is is a disciplinary pen pack.

            ....




      2
        … Because Jackson raises issues related only to the punishment phase
of his trial and does not challenge the sufficiency of the evidence to support his
conviction, we omit a detailed factual background concerning the offense.

                                        2
      [JACKSON’S ATTORNEY]: Two, I wish to -- I’m trying to figure
      out the best way to make this objection, but there are a number of
      pages on State’s Exhibit 2. Each one, I guess, can be identified as
      TDCJ-ID disciplinary report and hearing record, and I’m only
      estimating, there must be like 60 pages.

             Is that an approximate number, since they’re not numbered
      in this exhibit?

      [THE STATE]: Sure.

      [JACKSON’S ATTORNEY]: My objection is that these particular
      matters, if brought into evidence, would violate my client’s
      constitutional right under the Sixth Amendment,3 and in particular,
      I’m invoking the language -- or the decision of the U.S. Supreme
      Court in Blakely versus Washington, 2004 Supreme Court case,
      and I believe that it violates his constitutional rights. So for that I
      would ask that those be deleted out and not considered.

      [THE STATE]: Judge, my response is, first of all, it’s a TDC pen
      pack, and TDC pen packs -- the packet in its entirety is self-
      authenticating and therefore not hearsay and should be admitted
      into evidence. Also under Code of [C]riminal Procedure 37.07, all
      prior bad acts of the defendant are admissible.

      [JACKSON’S ATTORNEY]: And I had one other objection. They
      may have done this, but just in case they didn’t, I think I had
      requested all extraneous prior acts, and I don’t know if that was
      actually given to me regarding this part of his background.

      [THE STATE]: That was, Judge. That was in the 404. The State
      noticed [Jackson’s attorney] on the 404.

      [JACKSON’S ATTORNEY]: Okay. If they did, then I accept that.




      3
       … Jackson does not complain in this appeal of the trial court’s ruling on
his Sixth Amendment objection.

                                        3
      THE COURT: Overruled. It is admitted.

      After hearing the evidence and arguments of counsel, the jury assessed

Jackson’s punishment at life imprisonment on each count. The trial court noted

that the State had filed a motion for cumulative sentences and granted the

motion. The trial court thereafter sentenced Jackson in accordance with the

jury’s assessment and ordered that the sentences run consecutively.

                III. A CCEPTANCE OF S TATE ’S N OTICE E XPLANATION
                        O PERATED TO W ITHDRAW O BJECTION

      In his first issue, Jackson argues that the trial court erred by admitting the

fourteen extraneous offenses listed in the pen packet identified as State’s

Exhibit 2 because the fourteen extraneous offenses had not been disclosed as

required by Texas Rule of Evidence 404. As set forth above, however, after

objecting, Jackson’s trial counsel stated on the record that he accepted the

State’s assertion that it had given him timely notice pursuant to Rule 404.

When Jackson’s trial counsel accepted the State’s assertion that it had

provided proper notice, he essentially relieved the trial court of any obligation

to look into the type of notice that was given or to determine whether the

notice was timely. Consequently, Jackson’s trial counsel’s acceptance of the

State’s assertion that it had provided proper notice operated to withdraw his

objection; the trial court was no longer required to inquire into the notice


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matter, the State was not given an opportunity to further develop the record

concerning notice, and the exclusion of the evidence based on lack of notice

was no longer requested. Consequently, we cannot reverse on this issue. See

Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002) (stating the rule

that “a trial court’s decision will not be reversed on a theory the trial court did

not have an opportunity to rule upon and upon which the non-appealing party

did not have an opportunity to develop a complete factual record”), cert.

denied, 583 U.S. 1060 (2003). We therefore overrule Jackson’s first issue.

         IV. N O S EPARATE J URY F INDING R EQUIRED ON E XTRANEOUS A CTS

      In his second issue, Jackson argues that the trial court erred by admitting

the fourteen extraneous offenses listed in the pen packet in State’s Exhibit 2

without requiring a separate finding by the jury that Jackson had committed the

extraneous offenses. Specifically, Jackson argues that the trial court used the

extraneous offenses to increase the maximum punishment allowed under the

law in violation of Blakely v. Washingon and his Sixth Amendment rights by

ordering the two life sentences to be served consecutively. 542 U.S. 296,

299–301, 124 S. Ct. 2531, 2536 (2004).

      If the State offers evidence of extraneous offenses or bad acts during the

punishment phase of a trial, then the trial court must charge the jury that it can

consider such evidence only if it finds beyond a reasonable doubt that the

                                        5
defendant committed the extraneous offenses. Tex. Code Crim. Proc. Ann. art.

37.07, § 3(a)(1) (Vernon 2006 & Supp. 2008) (the State may offer “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”); see Huizar v. State,

12 S.W .3d 479, 483–84 (Tex. Crim. App. 2000) (holding that there is a

statutory requirement that the jury find beyond a reasonable doubt that

extraneous offenses and bad acts are attributable to the defendant before the

jury can consider them in assessing punishment). Huizar, however, does not

require a separate affirmative finding of guilt as to each extraneous offense or

bad act. 12 S.W.3d at 483–84. In addition, Blakely holds that any fact that

increases the penalty for a crime beyond the prescribed statutory maximum,

defined as the maximum the judge may impose without finding any additional

facts, must be affirmatively found by the jury beyond a reasonable doubt. 542

U.S. at 299–301, 124 S. Ct. at 2536; Woods v. State, 152 S.W.3d 105, 120

(Tex. Crim. App. 2004), cert. denied, 544 U.S. 1050 (2005).

      Here, the record reveals that the trial court gave the jury a proper

reasonable doubt instruction; that is, the jury was asked to determine Jackson’s

guilt of the extraneous offenses or bad acts beyond a reasonable doubt and

                                        6
was instructed not to consider the evidence of the extraneous offenses or bad

acts unless they found him guilty of those offenses or bad acts beyond a

reasonable doubt.     See Smith v. State, No. 02-08-00016-CR, 2009 WL

279490, at *2 (Tex. App.—Fort Worth Feb. 5, 2009, no pet.) (mem. op., not

designated for publication). The charge also set forth a punishment range that

included life imprisonment, which was within the statutory maximum for the

offense. See Tex. Penal Code Ann. § 22.011(a)(1), (f) (Vernon 2003 & Supp.

2008) (setting forth requisites of sexual assault and stating that it is a second-

degree felony), § 12.42(b) (Vernon 2003 & Supp. 2008) (stating that if it is

shown on the trial of a second-degree felony that the defendant has been once

before convicted of a felony, on conviction he shall be punished for a first-

degree felony), § 12.32(a) (Vernon 2003) (stating that punishment for first-

degree felony is imprisonment for life or for any term of not more than ninety-

nine years or less than five years). Because the sentence sought by the State

was within the statutory maximum possible sentence for the offense and

because the jury assessed a punishment within that maximum, Blakely does not

apply, and the jury was not required to make a separate affirmative finding of

guilty on the extraneous offenses and bad acts admitted during the punishment

phase. See Rios v. State, 263 S.W.3d 1, 11 (Tex. App.—Houston [1st Dist.]

2005, pet. dism’d, untimely filed); see also Scott v. State, No. 02-08-00333-

                                        7
CR, 2009 WL 1099425, at *7 (Tex. App.—Fort W orth Apr. 23, 2009, pet.

ref’d) (mem. op., not designated for publication) (holding that Blakely was

inapplicable when jury set punishment within statutory range, the basis of

which included an instruction that the complained-of allegations against

appellant had to be proven beyond a reasonable doubt); Dick v. State, No. 14-

04-00279-CR, 2005 WL 1771675, at *2 (Tex. App.—Houston [14th Dist.] July

28, 2005, no pet.) (mem. op., not designated for publication) (involving

evidence of extraneous offenses in PSI and holding that Blakely was not

applicable when sentence was within statutory range of punishment).

     Moreover, the Texas Court of Criminal Appeals has determined that a trial

court’s decision whether to cumulate sentences is a normative, discretionary

function that does not turn on findings of fact. Barrow v. State, 207 S.W.3d

377, 380 (Tex. Crim. App. 2006). So, even when a jury assesses punishment

for two separate counts of sexual assault and two sentences are imposed based

on the jury’s verdict, a trial court may order that the sentences run

consecutively. See Alameda v. State, 235 S.W.3d 218, 224 (Tex. Crim. App.),

cert. denied, 128 S. Ct. 629 (2007); see also Aguilar v. State, 202 S.W.3d

840, 841 (Tex. App.—Waco 2006, pet. ref’d) (stating that the statutory

maximum for each offense remains unchanged regardless of whether the trial

court orders the defendant to serve the sentences sequentially rather than

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concurrently). Because each of Jackson’s sentences lies within the prescribed

statutory range, the trial court’s judgment requiring Jackson’s sentences to be

served consecutively did not cause Jackson’s sentence for the instant offense

to exceed the statutory maximum and does not violate his Sixth Amendment

right to trial by jury. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon

2006) (giving trial court discretion whether to set sentences to run concurrently

or consecutively); Tyson v. State, 172 S.W.3d 172, 177 (Tex. App.—Fort

Worth 2005, pet. ref’d) (holding that trial court did not violate the Apprendi -

Blakely - Ring line of cases when it stacked appellant’s sentences in accordance

with article 42.08); see also Aguilar, 202 S.W.3d at 842 (same); Baylor v.

State, 195 S.W.3d 157, 160 (Tex. App.—San Antonio 2006, no pet.) (same).

We therefore overrule Jackson’s second issue.

                                V. C ONCLUSION

      Having overruled Jackson’s two issues, we affirm the trial court’s

judgment.




                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 1, 2009


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