      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00743-CR



                                Lowell Bobby Watson, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF MILLS COUNTY, 35TH JUDICIAL DISTRICT
            NO. 2737, HONORABLE STEPHEN ELLIS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Lowell Bobby Watson pleaded guilty to three counts of aggravated sexual assault of

a child. After a punishment hearing, the jury assessed sentence at fifty years in prison on each count.

The trial court ordered the sentences to run concurrently. Appellant asserts that the trial court

erred by admitting evidence of unadjudicated extraneous offenses because they were statutorily

inadmissible as to one of the three offenses. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)

(West Supp. 2009). Concluding that appellant failed to preserve this error by requesting a limiting

instruction and that appellant has failed to show harm from the admission of this evidence, we affirm

the judgment.

                The three counts allege different means and dates of committing sexual assault of

a child. The victim in all instances was appellant’s daughter. The first count alleges that appellant

penetrated her sexual organ with his penis on or about April 17, 1994. The second count alleges that
appellant caused her mouth to contact his penis on or about April 17, 1994. The third count alleges

that appellant caused his finger to penetrate her sexual organ on or about April 17, 1992. Appellant

pleaded guilty to all three counts. His guilt is not at issue on appeal.

               At the punishment phase of the trial, the State offered testimony from a sheriff’s

deputy, the victim, and the victim’s sister. The victim’s testimony supported the allegations in the

indictment. This appeal concerns testimony by the victim’s sister about unadjudicated extraneous

actions. The victim’s sister testified that, when she was eight years old, appellant told her that her

breasts were “developing nicely.” The victim’s sister also testified that, when she was fourteen or

fifteen years old and taking a shower, appellant came into the bathroom, fondled her breast, and

“stuck his tongue down [her] throat.”

               Appellant contends that the victim’s sister’s testimony was inadmissible because

it concerned unadjudicated extraneous offenses in a trial concerning an offense occurring

before September 1, 1993. The statute permitting admission of unadjudicated extraneous offenses

in noncapital cases applies expressly to offenses occurring on or after the effective date of

the statute—September 1, 1993. Act of May 29, 1993, 73d Leg., R.S., ch. 900, §§ 5.05, 5.09,

1993 Tex. Gen. Laws 3586, 3759-61; see also Voisine v. State, 889 S.W.2d 371, 372

(Tex. App.—Houston [14th Dist.] 1994, no pet.). Count three allegedly occurred on April 17, 1992,

before the statute became effective. Appellant argues that reversal and remand are proper because,

as in Voisine, it is not possible to “determine beyond a reasonable doubt that this error made no

contribution to the punishment assessed by the jury.” 889 S.W.2d at 372.




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                We review the admission of evidence for an abuse of discretion. Ramos v. State,

245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). The trial court’s ruling will be upheld if it is

reasonably supported by the record and is correct under any theory of law applicable to the case. Id.

at 418. The trial court abuses its discretion if its decision to admit evidence lies outside the zone of

reasonable disagreement. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). Even if

the trial court erred in admitting evidence, the error is reversible only if it affected the defendant’s

substantial rights. See Tex. R. App. P. 44.2(b); Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim.

App. 2000). We consider the entire record in determining whether any error had a substantial and

injurious effect or influence in determining the jury’s verdict. Morales, 32 S.W.3d at 867.

                When evidence that 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. However, in the absence of such request, the court’s action in

admitting the evidence without limitation shall not be a ground for complaint on appeal. See Tex. R.

Evid. 105(a). The party opposing the general admission of evidence admissible for a limited purpose

has the burden of requesting a limiting instruction. See Hammock v. State, 46 S.W.3d 889, 893

(Tex. Crim. App. 2001). Once evidence is admitted without a proper limiting instruction, it may be

considered for all purposes. See Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007).

                This case is not controlled by Voisine. In Voisine, the defendant was indicted and

convicted of one offense that occurred before the effective date of the statute. Id. at 371. Here, the

evidence indicates that the offense in count three (digital penetration) may have also occurred along

with the other sexual assaults that occurred after the effective date of the statute. Further, the first



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two counts of the indictment in this case allege offense dates that are undisputedly after article 37.07,

section 3(a) changed. Appellant does not argue that the first two counts to which he pleaded guilty

occurred before the effective date of the statute.

                Appellant did not preserve error that shows a violation of his substantial rights. The

evidence of the unadjudicated extraneous acts was admissible with respect to the first two counts.

Appellant did not request a limiting instruction regarding its applicability to the third count

and, therefore, waived appellate review of any error concerning the admission of the evidence of

the unadjudicated extraneous acts. See Tex. R. Evid. 105(a); Angelo v. State, 977 S.W.2d 169, 180

(Tex. App.—Austin 1998, pet. ref’d). Even if any error were preserved as to the third count,

the record does not show that appellant’s substantial rights were affected. His guilty plea on all

three counts preceded the admission of the evidence and so is unaffected by any error. There is

substantial other evidence on which a jury might base its sentence—namely, appellant’s guilty plea

and his younger daughter’s testimony about appellant’s five years of sexual assaults on her while she

was nine to fourteen.

                The jury sentenced appellant to concurrent terms of fifty years in prison for

each offense. There is no indication in the record that the evidence of appellant’s actions toward the

older daughter caused the jury to assess the penalty it did—in other words, there is no indication in

the record that the jury would have assessed a lesser sentence on the third count if the evidence of the

unadjudicated actions toward the older daughter had been limited or excluded as to the third count.

Appellant has not argued, and the record does not support, the proposition that the jury’s

consideration of the unadjudicated extraneous offense evidence with respect to count three caused



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the jury to assess longer sentences with respect to counts one and two. Even if the jury would have

assessed a lesser sentence on the third count had the evidence not been admitted as to that offense,

appellant has not demonstrated that he was harmed. Whatever sentence he received with respect to

count three would still run concurrently with the two concurrent terms of fifty years in prison for the

first two counts.

               Because appellant failed to preserve this error alleged for review, and because

appellant failed to show that he was harmed by any alleged error, the judgment is affirmed.




                                               G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Affirmed

Filed: May 5, 2010

Do Not Publish




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