                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00073-CR


MICHAEL JONES, II                                                  APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. F-2013-1447-A

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                        MEMORANDUM OPINION1

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      Appellant Michael Jones, II pleaded guilty to the offense of continuous

family violence. The trial court conducted a punishment hearing and assessed

Appellant’s punishment at 8 years’ confinement. In a single issue on appeal,

Appellant argues that the trial court erred at the punishment hearing by

considering certain extraneous bad acts that “were never reported [or] indicted,


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      See Tex. R. App. P. 47.4.
where there was conflicting testimony and hence not proven beyond a

reasonable doubt.”     Specifically, Appellant complains of the trial court’s

consideration of extraneous acts testified to by Stacey––Appellant’s wife at the

time of the offense and the victim in this case—and testified to by Dayna––

Appellant’s ex-wife.

      Both women testified that Appellant’s violence was related to his drinking.

Stacey testified to specific, detailed incidents where Appellant slapped her,

burned her with a “meth pipe,” and punched her in her breasts. Dayna testified

that on one occasion during her marriage to Appellant, she had to fight Appellant

off with a knife to prevent a sexual assault.     She testified that on another

occasion as she kneeled in the living room, Appellant placed his foot on her

throat and knocked her backwards, causing her to lose consciousness. She also

testified to an incident when Appellant “smacked” her in the face. Appellant

claims that “[t]he court erroneously took the testimony of these witnesses at face

value even though their testimony was not substantiated by any indictment,

police reports made, or witnesses.”

      Regarding extraneous bad acts evidence that may be considered at

punishment, article 37.07, section 3(a)(1) of the code of criminal procedure

provides, in part:

             (a)(1) Regardless of the plea and whether the punishment be
      assessed by the judge or the jury, evidence may be offered by the
      state and the defendant as to any matter the court deems relevant to
      sentencing, including but not limited to the prior criminal record of
      the defendant, his general reputation, his character, an opinion


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      regarding his character, the circumstances of the offense for which
      he is being tried, and, notwithstanding Rules 404 and 405, Texas
      Rules of Evidence, 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.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2014).             Thus,

although Appellant complains that the testimony of Stacey and Dayna concerning

extraneous bad acts “was not substantiated by any indictment, police reports

made, or witnesses,” article 37.07, section 3(a)(1) specifically authorizes

consideration at punishment of a defendant’s extraneous bad act “regardless of

whether [the defendant] has previously been charged with or finally convicted of

the act.” Id. An extraneous bad act must be shown beyond a reasonable doubt

to have been committed by the defendant; but whether an extraneous offense or

bad act was established beyond a reasonable doubt is a question of fact for the

trier of fact, not a preliminary question of admissibility for the trial court. Vicioso

v. State, 54 S.W.3d 104, 120 (Tex. App.––Waco 2001, pet. ref’d) (citing Mitchell

v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996)), cert. denied, 536 U.S.

915 (2002).

      The trial court, as the trier of fact in a bench trial, is the sole judge of the

credibility of the witnesses and the weight to be given to their testimony. See,

e.g., Goodwin v. State, 376 S.W.3d 259, 264 (Tex. App.––Austin 2012, pet.

ref’d). Here, the trial court was free to determine the credibility of Stacey and of

Dayna and to determine the weight to be given their testimony concerning the


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extraneous bad acts. We have carefully reviewed the evidence presented at the

punishment       hearing;   deferring   to   the   trial   court’s   punishment-phase

determinations as to the credibility of Stacey and Dayna, we hold that the

evidence of the complained-of bad acts was sufficient for the trial court to have

found beyond a reasonable doubt that Appellant committed the bad acts testified

to. See Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005) (“[T]he

statutorily imposed burden of proof beyond a reasonable doubt does not require

the offering party [of bad act evidence under article 37.07, section 3(a)(1)] to

necessarily prove that the act was a criminal act or that the defendant committed

a crime.”); Kennedy v. State, 193 S.W.3d 645, 661 (Tex. App.—Fort Worth 2006,

pet. ref’d) (en banc, op. on reh’g) (holding that uncorroborated testimony of

accomplice on defendant’s involvement in prior armed robbery, for which

defendant was never indicted, was admissible at punishment as extraneous bad

act evidence).

         We overrule Appellant’s sole issue and affirm the judgment of the trial

court.


                                                       /s/ Sue Walker
                                                       SUE WALKER
                                                       JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

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

DELIVERED: January 8, 2015


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