Bluitt v. State

• Decision Date: 09 June 2004
• Docket Number: No. 723-02.,723-02.
• Parties: Maurice BLUITT, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

137 S.W.3d 51

Maurice BLUITT, Appellant, v. The STATE of Texas.

No. 723-02.

Court of Criminal Appeals of Texas.

June 9, 2004.

William Reagan Wynn, Fort Worth, for Appellant.

Anne Swenson, Asst. DA, David M. Curl, Asst. DA, Fort Worth, Matthew Paul, State's Attorney, Austin, for State.

En banc.

OPINION

JOHNSON, J., delivered the unanimous opinion of the Court.

A jury convicted appellant of one count of indecency with a child by contact and sentenced him to twenty years confinement, the maximum term, and a $5,000 fine. At the guilt-innocence phase of trial, appellant testified and denied that he had inappropriately touched the alleged victim, who was his girlfriend's eight-year-old daughter. Appellant also testified that he had disciplined her with an open hand and that she had made the allegations because she was angry with him. The state, on cross-examination, introduced evidence of four prior convictions: a 1998 conviction for assault with bodily injury on a family member; two convictions, in 1992 and 1993, both for assault-domestic violence in Denver County, Colorado; and a 1982 conviction for fraud in Dallas County. During voir dire of appellant in the absence of the jury, appellant admitted numerous other offenses, and state's exhibits 4, 5, and 6, concerning four of those offenses, were offered and admitted into evidence without objection.

At the punishment phase of trial, the state re-offered all of the evidence previously presented, including state's exhibits 4, 5, and 6. Exhibit 4 showed a two-year misdemeanor probation for assault and a four-year deferred adjudication for kidnapping/sexual assault in 1998 in Arapahoe County, Colorado. Exhibit 4A, included in the record on appeal, contains the terms and conditions for those probations. There was nothing to indicate that either probation had been revoked or adjudicated. Exhibit 5 showed a deferred adjudication for sexual assault in 1987 in Dallas County, Texas. Exhibit 5A, included in the record on appeal, shows that appellant had discharged that deferred adjudication. Exhibit 6 showed a 1998 conviction for misdemeanor Class A assault on a family member in Tarrant County, Texas.

On appeal, appellant claimed that, at punishment, the trial court erred in failing to instruct the jury that it could consider evidence of extraneous offenses only if it believed beyond a reasonable doubt that appellant committed those offenses. The state argued that appellant had waived his right to complain of the failure to instruct because his counsel affirmatively stated on the record that he had no objection to the jury charge. The court of appeals reviewed the case law noted by the parties and then, citing Webber v. State, 29 S.W.3d 226 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd), held that no distinction should be drawn between waiver by silence and waiver by an affirmative approval where there is jury-charge error. The court of appeals further held that the trial court's failure to include the required reasonabledoubt instruction was error. Bluitt v. State, 70 S.W.3d 901, 906 (Tex.App.-Fort Worth 2002). The court of appeals then reviewed the record for evidence of egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985).

In making that determination, the court of appeals noted that Huizar v. State, 12 S.W.3d 479 (Tex.Crim.App.2000)(op. on reh'g), and Almanza direct the courts of appeals to "review the degree of harm in light of the entire jury charge, the state of the evidence, including contested evidence and the weight of probative evidence, the argument of counsel and any other relevant information" shown by the record. Id.

Based on its findings that: 1) during closing argument, the prosecutors focused on the extraneous-offense evidence; 2) the issue of guilt was hotly contested; and 3) the jury returned the maximum term of imprisonment, the court of appeals concluded that "the failure to properly include the reasonable-doubt instruction was egregious and likely resulted in an unfair trial on punishment." Id. The court of appeals then reversed the judgment of the trial court and remanded for a new punishment hearing. While the language of its opinion is somewhat unclear, the court of appeals clearly based its ruling on the effect of the failure to include the instruction on reasonable doubt with regard to extraneous offenses. As set out in Huizar and Almanza, the failure to instruct resulted in egregious harm if, because of the failure, appellant failed to receive a fair and impartial trial. See Huizar, at 485; Almanza, at 160.

The state raises three grounds for review: 1) the court of appeals erroneously held that the Code of Criminal Procedure, art. 37.07, § 3(a)(1), requires a defendant's prior criminal convictions (as opposed to other offenses or bad acts committed by the defendant) that are introduced into evidence at the punishment phase to be proved beyond a reasonable doubt; 2) the court of appeals misapplied the standard for egregious harm under Almanza; and 3) the court of appeals erroneously ruled that, even though appellant affirmatively stated to the trial court that he had no objection to the jury charge, appellant was nevertheless entitled to appellate review of the alleged charge error under Almanza.

Preservation of Ability to Complain on Appeal

In its third ground for review, the state argues that appellant waived his ability to complain on appeal about the refused jury instruction because, when the trial court inquired if there were objections to the proposed punishment jury instructions, appellant responded, "No." The issue here is the effect of an affirmative denial of objection as opposed to failure to object.

Our case law is clear that when there is jury-charge error, whether objected to or not objected to, the standard for assessing harm is controlled by Almanza v. State, 686 S.W.2d 157 (Tex.Cr...