                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00128-CR

STEPHEN CHRISTOPHER MCCORMICK,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 77th District Court
                             Freestone County, Texas
                            Trial Court No. 10-116-CR


                          MEMORANDUM OPINION


      Appellant, Stephen Christopher McCormick, was charged by indictment with

one count of aggravated sexual assault of a child younger than fourteen years of age, a

first-degree felony. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (a)(2)(B), (e) (West

Supp. 2011). A jury convicted McCormick of the charged offense, and the trial court

sentenced him to forty-five years’ incarceration with no fine. In one issue on appeal,

McCormick argues that the trial court erred by not giving a timely limiting instruction
regarding references to extraneous acts contained in letters that were proffered at trial.

We affirm.

                                            I.      BACKGROUND

        McCormick was alleged to have sexually assaulted his then-seven-year-old

daughter, Z.M., by “contacting” her sexual organ with his mouth.                       McCormick is

divorced from Z.M.’s mother, and the incident allegedly took place during Z.M.’s

weekend visitation with McCormick. Z.M. testified about the incident and explained

that McCormick had “kissed me on my private.”1 Z.M. later told her mother about the

incident who, in turn, contacted law enforcement.

        At some point during the trial and while outside the presence of the jury, the

State first tendered three letters written by McCormick for inclusion in the record. One

letter in particular—State’s exhibit 1, which McCormick calls the “Friday night” letter—

troubled McCormick and resulted in several objections.                   In this letter, which was

addressed to Z.M.’s mother, McCormick makes numerous statements about the

incident and his legal situation.          However, he also noted the following when he

explained why the incident transpired: “I really have no real reason. I was high on

K2,[2] but I don’t know. I know that I didn’t have God in my life and was destroying

myself [with] porn.” McCormick objected to State’s exhibit 1, alleging that it referenced

        1The testimony also suggested that McCormick penetrated Z.M.’s sexual organ with his finger;
however, the indictment did not reference this allegation. In addition, a fellow inmate at the Freestone
County Jail, testified that McCormick told him that “he was eating her [Z.M.] out” and that, while
helping Z.M. shower, “the soap made it easy. His fingers were going in and out of her.”

        2 In his appellate brief, McCormick described K2 as “a psychoactive herbal and chemical product
[synthetic cannabis] which, when consumed mimics the effects of cannabis.” APPELLANT’S BRIEF at pg. 1
(citing Wikipedia, Synthetic Cannabis, available at http://en.wikipedia.org/wiki/Synthetic_cannabis (last
visited Feb. 16, 2012)).

McCormick v. State                                                                                Page 2
extraneous acts, which constituted violations of Texas Rules of Evidence 403 and 404(b).

See TEX. R. EVID. 403, 404(b).      Initially, McCormick asked that those references be

excluded from the document. The State countered that the statements provided context

as to why McCormick committed the offense and, thus, were more probative than

prejudicial.   While outside the presence of the jury, the trial court overruled

McCormick’s objections.       After the trial court overruled his objections, McCormick

requested that the trial court instruct the jury regarding extraneous offenses. The trial

court provided the following response: “I’ve not heard all the evidence, but I probably

will give one.       But I’ll give it in the charge.   I’m not going to give it here and

now. . . . But I intend to give an extraneous offense charge in the Court’s charge.”

       Shortly thereafter, the jury was brought into the courtroom, and the trial

resumed. While Z.M.’s mother was testifying, the State tendered the letters for official

inclusion in the record. McCormick once again lodged his objections, which were

overruled. He also requested a limiting instruction on extraneous offenses to which the

trial court responded: “I’ll give you one at the end of the trial.” The State then had

Z.M.’s mother read the contents of State’s exhibit 1 into evidence. Prior to reading the

statements regarding the K2 and pornography, McCormick objected and requested a

limiting instruction about extraneous offenses. At this time, the trial court provided the

following instruction:

              Ladies and gentlemen, I will go ahead and instruct you at this time.
       I intended to give you instruction at the end of the case. But I intend to
       instruct you now that if there are some other offenses that you hear about
       with regards to this exhibit, that those are only relevant if you find them
       relevant as to the issues in this case.

McCormick v. State                                                                     Page 3
               And then you must find beyond [a] reasonable doubt, that in fact,
        those offenses were committed and that they are relevant to issues here.
        Does everybody understand? You may proceed.

After the instruction, Z.M.’s mother proceeded to read into evidence the contents of

State’s exhibit 1, including the statements about the K2 and pornography.3

        At the conclusion of the evidence, the jury was provided another limiting

instruction regarding extraneous acts in the trial court’s charge to the jury:

        The State has introduced evidence of extraneous crimes or bad acts other
        than the one charged in the indictment in this case. This evidence was
        admitted only for the purpose of assisting you, if it does, for the purpose
        of showing the defendant’s motive, opportunity, intent, preparation, plan,
        knowledge, identity, or absence of mistake or accident, if any. You cannot
        consider the testimony unless you find and believe beyond a reasonable
        doubt that the defendant committed these acts, if any, were committed.

        The jury subsequently convicted McCormick of the charged offense, and the trial

court assessed punishment at forty-five years’ incarceration in the Institutional Division

of the Texas Department of Criminal Justice with no fine. The trial court certified

McCormick’s right to appeal, and this appeal ensued.

                                      II.     STANDARD OF REVIEW

        The Texas Rules of Evidence make evidence of a criminal defendant’s extraneous

offenses inadmissible “to prove the character of a person in order to show action in

conformity therewith,” but makes such evidence admissible for other, limited purposes.

TEX. R. EVID. 404(b); see Hernandez v. State, 109 S.W.3d 491, 494 (Tex. Crim. App. 2003);

Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Texas Rule of Evidence


        3 It is worth noting that McCormick chose to testify in his own defense wherein he explained the
incident and made repeated references to his usage of K2 and pornography.

McCormick v. State                                                                               Page 4
105(a) provides that when “evidence which is admissible . . . for one purpose but not

admissible . . . for another purpose is admitted, the court, upon request, shall restrict the

evidence to its proper scope and instruct the jury accordingly.” TEX. R. EVID. 105(a); see

Hammock v. State, 46 S.W.3d 889, 892 (Tex. Crim. App. 2001). “The language of Rule

105(a) requires, upon proper request, a limiting instruction to be given at the time the

evidence is admitted.” Hammock, 46 S.W.3d at 894; see Rankin v. State, 974 S.W.2d 707,

713 (Tex. Crim. App. 1996) (op. on orig. submission)).4 “[A] trial court does not have

discretion to postpone giving a properly[-]requested limiting instruction when that

request is made at admission of the evidence.” Hammock, 46 S.W.3d at 894; see Rankin,

974 S.W.2d at 711-13.

        The failure to give a timely limiting instruction pursuant to Texas Rule of

Evidence 105(a) is non-constitutional error. See Jones v. State, 119 S.W.3d 412, 424 (Tex.

App.—Fort Worth 2003, no pet.); see also Taylor v. State, No. 10-01-00109-CR, 2004 Tex.

App. LEXIS 2338, at *14 (Tex. App.—Waco Mar. 10, 2004, pet. ref’d) (mem. op., not

designated for publication). Other than constitutional error, “any other error, defect,

irregularity, or variance that does not affect substantial rights must be disregarded.”

TEX. R. APP. P. 44.2. “‘A substantial right is affected when the error had a substantial

        4   The Texas Court of Criminal Appeals specifically stated that:

        The spirit of the rule [Texas Rule of Evidence 105] and the contemplation of the rule-
        makers includes two separate notions: First, that limiting instructions actually curb the
        improper use of evidence and, second, that the rule should act in a way that not only
        “restricts the evidence to its proper scope,” but does so as effectively as possible.
        Working under these notions, logic demands that the instruction be given at the first
        opportunity.

Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001) (quoting Rankin v. State, 974 S.W.2d 707, 712
(Tex. Crim. App. 1996)) (emphasis in original).

McCormick v. State                                                                                  Page 5
and injurious effect or influence in determining the jury’s verdict.’” Burnett v. State, 88

S.W.3d 633, 637 n.8 (Tex. Crim. App. 2002) (quoting King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997)). “[A] criminal conviction should not be overturned for non-

constitutional error if the appellate court, after examining the record as a whole, has fair

assurance that the error did not influence the jury, or had but a slight effect.” Routier v.

State, 112 S.W.3d 554, 577 (Tex. Crim. App. 2003). Generally, in assessing the likelihood

that the jury’s decision was adversely affected by the error, the appellate court should

consider everything in the record, including any testimony or physical evidence

admitted for the jury’s consideration, the nature of the evidence supporting the verdict,

the character of the alleged error and how it might be considered in connection with

other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002).

       “An appellate court can and should consider overwhelming evidence of guilt in

a harm analysis.”     Id. at 353.   “The reviewing court may also consider the jury

instructions, the State’s theory and any defensive theories, closing arguments and even

voir dire, if applicable.” Id. at 355. Also, “whether the State emphasized the error can

be a factor.” Id. at 356. In analyzing the harm from the denial of a timely request for an

extraneous-offense limiting instruction, we consider: (1) the extent of other evidence

introduced; (2) whether the trial court gave a limiting instruction in the jury charge; (3)

the length of time between the introduction of the extraneous-offense evidence and the

charge limiting instruction; and (4) whether the extraneous offenses were “more

heinous or inflammatory” than the charged offense. Jones v. State, 944 S.W.2d 642, 654

(Tex. Crim. App. 1996); see Jones, 119 S.W.3d at 424-25.

McCormick v. State                                                                    Page 6
                                        III.   ANALYSIS

       In his only issue on appeal, McCormick asserts that the trial court erred by failing

to give a timely limiting instruction even though a request was made. Specifically,

McCormick complains about the introduction of his letters wherein he admitted to the

extraneous acts of using K2 and viewing pornography.

       As previously noted, the Texas Court of Criminal Appeals has stated that a rule

105(a) limiting instruction should be given when such a “request is made at admission

of the evidence.” Hammock, 46 S.W.3d at 894; see Rankin, 974 S.W.2d at 712-13. Here,

while in the presence of the jury, the State simultaneously tendered the three letters for

inclusion in the record. At that time, McCormick objected and requested a limiting

instruction. See id. at 892 (noting that the “‘party opposing evidence has the burden of

objecting and requesting the limiting instruction at the introduction of the evidence’”

(quoting Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994)). The trial court

overruled McCormick’s objection and declined to give an instruction at that time.

However, when State’s exhibit 1, which was the letter containing the alleged

problematic material, was read into evidence by Z.M.’s mother, McCormick once again

objected and requested a limiting instruction. This time, the trial court provided a rule

105(a) limiting instruction about extraneous offenses. See TEX. R. EVID. 105(a).

       The State argues that the trial court’s limiting instruction was timely “as it was

prior to the jury’s knowledge of the extraneous offenses.” Based on the record before

us, it is unclear whether this is true. What is apparent from the record is that a limiting

instruction was not given at the time State’s exhibit 1 was admitted into evidence. See

McCormick v. State                                                                   Page 7
Hammock, 46 S.W.3d at 894; see also Rankin, 974 S.W.2d at 712-13. Though this appears to

be a violation of rule 105(a), we cannot say that the error is harmful. See TEX. R. EVID.

105(a); see also Jones, 944 S.W.2d at 654. This is true for several reasons, which we

discuss below.

       In considering the factors articulated in both Jones cases, we cannot say that the

trial court’s failure to give a timely limiting instruction amounted to harmful error

requiring a reversal of the trial court’s judgment. See Jones, 944 S.W.2d at 654; Jones, 119

S.W.3d at 424-25; see also Taylor, 2004 Tex. App. LEXIS 2338, at *16. Here, the trial court

gave two limiting instructions regarding the extraneous acts—the first instruction was

given a few minutes after the letters were admitted into evidence, and the second was

given the next day in the trial court’s charge to the jury. See Jones, 944 S.W.2d at 654;

Jones, 119 S.W.3d at 424-25; see also Taylor, 2004 Tex. App. LEXIS 2338, at *16. In

addition, we do not believe that the extraneous acts referenced in State’s exhibit 1—

unlawfully using a controlled substance, K2, and viewing pornography—are “more

heinous or inflammatory” than the offense of which McCormick was charged—

aggravated sexual assault of a child younger than fourteen years of age. See Jones, 119

S.W.3d at 425; see also Taylor, 2004 Tex. App. LEXIS 2338, at *16. Moreover, there is an

abundance of evidence in the record detailing the sexual assault of Z.M., including

testimony from the child victim and the child victim’s mother, admissions made by

McCormick in the other letters which were not objected to, and admissions made by

McCormick to a fellow inmate.        See Motilla, 78 S.W.3d at 353 (indicating that an

appellate court should consider overwhelming evidence of guilt in a harm analysis);

McCormick v. State                                                                    Page 8
Jones, 944 S.W.2d at 654; see also Taylor, 2004 Tex. App. LEXIS 2338, at *16. And finally,

we find it worth mentioning that McCormick chose to testify on his own behalf, and it

was he, not the State, who emphasized the extraneous acts in State’s exhibit 1. See

Motilla, 78 S.W.3d at 355-56. In fact, McCormick used the complained-of extraneous

acts as excuses for why he committed the act alleged in this case.

       Based on the foregoing, we conclude that the trial court erred by failing to give a

limiting instruction with regard to the extraneous acts contained in State’s exhibit 1

when the exhibit was first admitted into evidence. See TEX. R. EVID. 105(a); see also

Hammock, 46 S.W.3d at 894; Rankin, 974 S.W.2d at 711-13.             However, we further

conclude that this error had no more than a slight effect on the jury’s verdict and, thus,

was harmless. See TEX. R. APP. P. 44.2; Motilla, 78 S.W.3d at 355-56; Jones, 119 S.W.3d at

424; see also Taylor, 2004 Tex. App. LEXIS 2338, at **16-23. Accordingly, we overrule

McCormick’s sole issue on appeal.

                                      IV.    CONCLUSION

       We affirm the judgment of the trial court.




                                                AL SCOGGINS
                                                Justice




McCormick v. State                                                                  Page 9
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 14, 2012
Do not publish
[CR25]




McCormick v. State                           Page 10
