text:
    Gregory Barnett GRIGGS, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00286-CR.
    Court of Appeals of Texas, Waco.
    April 13, 2005.
    Discretionary Review Granted Sept. 28, 2005.

      Robert C. Dunn, Jacob Davis, Dunn & Associates, Corsicana, for appellant.
    Steve Keathley, Navarro County Dist. Atty., Corsicana, Matthew W. Paul, State Prosecuting Atty., Austin, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Gregory Barnett Griggs was found guilty by a jury of aggravated sexual assault on an elderly person. Tex. Pen.Code Ann. § 22.021 (Vernon Supp.2004-05). He was sentenced to life imprisonment and fined $10,000. He brings four issues on appeal: (1) his right to a fair and impartial trial was violated by the court’s allowing a witness to testify without proper notice being given by the State; (2) the evidence was not factually sufficient to sustain a verdict of guilty; (3) the trial court improperly overruled his motions for mistrial; and (4) the verdict is weakly supported by the record and the prosecution’s case was fraught with error.

BACKGROUND

The victim testified that she was sexually assaulted in her home by an unknown assailant. She had fallen asleep in front of the television and awoke in the dark. Her assailant ripped open her robe, held her arms, and sexually penetrated her. She was unable to see her assailant. After-wards, she heard crashing sounds as the assailant escaped through the kitchen. When police arrived, they found a back door- smashed out and shards of broken lattice panels. An officer testified that he found a glove lying on the ground among the lattice shards and paint chips. DNA found in the glove was compared to a blood sample drawn from Griggs. A DPS criminologist and a DNA expert each testified that the DNA from the glove matched that from the blood sample. Two witnesses testified to conversations they had with Griggs while they and Griggs were inmates. Inmate Gravitt testified that Griggs admitted to sexually assaulting an elderly woman in Griggs’s neighborhood. Inmate Spencer testified that Griggs nodded and grinned when he asked Griggs if he had committed the assault.

Undisclosed Witness

Griggs argues that he was denied his right to a fair and impartial trial because the trial court allowed a witness to testify without proper notice being given by the State. On the second day of testimony, the prosecution requested leave to allow an additional witness to testify. Over Griggs’s objection, the trial court allowed the testimony to be presented to the jury. In determining whether or not a trial court abused its discretion in allowing an undisclosed witness to testify, we consider whether the prosecution’s action constituted bad faith and whether the defendant could have reasonably anticipated the witness’s testimony. Wood v. State, 18 S.W.3d 642, 649 (Tex.Crim.App.2000).

The undisclosed witness — inmate Spencer — testified to a conversation he had with Griggs. Spencer’s attorney and the prosecutor both testified that the prosecution did not become aware of Spencer’s willingness to testify and of the conversation to which he would testify until the afternoon before the State requested leave to allow the testimony. The prosecutor informed Griggs’s counsel that evening of its intention to add Spencer to its witness list. The trial court found no bad faith on the State’s part and determined that the prejudice to the defense could be cured by granting defense counsel time to prepare. The court ordered the State to provide the defense relevant information regarding Spencer for the purpose of preparation and cross-examination.

Because the trial court could have reasonably found that the State did not learn of this witness until the time of trial, and because the trial court provided the defense an opportunity to prepare for cross-examination of the witness, the trial court did not abuse its discretion in allowing the witness testimony. See Stoker v. State, 788 S.W.2d 1, 15 (Tex.Crim.App.1989); Bridge v. State, 726 S.W.2d 558, 566 (Tex.Crim.App.1986).

Factual Sufficiency

Griggs argues that the evidence at trial was not factually sufficient to sustain the verdict. We review factual sufficiency by considering all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004).

Griggs argues that there is no physical evidence that placed him in the house where the attack took place. However, testimony by the investigating officer and the victim supports the State’s theory that the glove containing Griggs’s DNA was worn by the assailant during entry into the house and left behind by the assailant as he exited the home by breaking through the lattice and screen door. Inmate Grav-itt testified that Griggs bragged to him that he had assaulted an old woman in his neighborhood. Inmate Spencer testified that while he and Griggs were discussing the indictment against him, Griggs “grinned and shook his head yes” when the inmate asked Griggs if he had committed the crime. The defense called other inmates who testified that they had been asked by law enforcement officials to give information about Griggs. One inmate testified that inmate Gravitt said he would “give up a name for a whole bunch of time” and stated his desire to “take him [Griggs] down.”

The jury determines the credibility of the witnesses and may “believe all, some, or none of the testimony.” Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991). The evidence is not factually insufficient merely because the jury resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App.1997). Because we must defer to the jury’s determination of credibility, we cannot say that the jury was not rationally justified in finding Griggs guilty of the assault.

Motions for Mistrial

Griggs argues that the trial court improperly overruled his motions for mistrial after the State disregarded rulings and instructions by the trial court. We review an order denying a motion for mistrial for an abuse of discretion. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003). A trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict could be reached but would have to be reversed on appeal due to an obvious procedural error. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999).

Griggs complains of two types of prosecutorial misconduct. First, he argues that the prosecutor deliberately positioned a trial exhibit — a photograph that had been ruled inadmissible — face up on his counsel table in view of the jury. Griggs brought this to the court’s attention and requested a mistrial. The trial court denied the motion, instructed the prosecutor to keep documents not admitted into evidence out of the sight of the jury, and instructed the jury to disregard any documents, photographs, or objects they might see in the courtroom that have not been admitted as evidence. Although we do not condone such activity, we find that the instruction was sufficient to cure any harm.

Second, Griggs argues that the State committed prosecutorial misconduct by eliciting extraneous allegations against him. The court instructed the prosecutor that there should be no testimony regarding any criminal acts or offenses which were not subject to the current proceedings. The court specifically expressed its concern regarding testimony of admissions to three sexual assaults. In response to the court’s instruction, the prosecutor requested a break to speak to the witnesses before they were called. Nevertheless, when the prosecutor asked Gravitt what Griggs told him, Gravitt responded: “That he had raped some older women.” Later in his testimony, Gravitt repeated his statement that Griggs said “he had raped older women.” The prosecution’s next witness was the detective to whom Gravitt had made the statement. The detective testified that Gravitt had told him that Griggs said “he had raped three elderly women in his neighborhood.”

The State argues that Griggs failed to preserve his complaint in this instance because he did not timely object to the testimony. Generally, a timely objection to a violation of a motion in limine is necessary to preserve a complaint of error. Wilkerson v. State, 881 S.W.2d 321, 326 (Tex.Crim.App.1994). However, an objection after an event occurs cannot fulfill the purpose of the objection, which is to prevent the occurrence of the event. Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App.2004). At the conclusion of the two 'witnesses’ testimony, Griggs made a motion for mistrial and requested an instruction. The trial court denied the motion for mistrial and instructed the jury before the next witness was called. Under these circumstances, Griggs’s actions were sufficient to preserve the complaint about the mistrial ruling. See id. (If an instruction could not have enabled the continuation of the trial by an impartial jury, “the only suitable remedy is a mistrial, and a motion for mistrial is the only essential prerequisite to presenting the complaint on appeal.”).

The asking of an improper question will seldom require a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Ladd, 3 S.W.3d at 567; Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex.Crim.App.1990). Similarly, a witness’s inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard. Rojas v. State, 986 S.W.2d 241, 250 (Tex.Crim.App.1998). An exception exists where the reference was clearly calculated to inflame the minds of the jury or was of such damning character as to suggest it would be impossible to remove the harmful impression from the jurors’ minds. Id. A mistrial is required only when an improper question or reference is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. See Ladd, 3 S.W.3d at 567; Simpson, 119 S.W.3d at 272. Regardless of whether the prosecutor’s questions were intended to elicit the inadmissible testimony, the focus of our analysis is on the prejudice to the defendant. The testimony was not only heard by the jury but was repeated by two State’s witnesses, one of whom was the investigating officer in the case. Furthermore, the testimony was given in violation of the court’s earlier ruling. Afterward, the trial judge himself expressed concern that the testimony of the witnesses had jeopardized the trial. The impression produced in the minds of the jurors — that Griggs might be a serial rapist of elderly women — was highly prejudicial and could not be cured by an instruction to disregard. Given the lack of direct identification of the perpetrator of the crime charged, and because the prosecution relied heavily upon Griggs’s alleged admissions to his fellow inmates, the danger that the jury may have been swayed by the inadmissible testimony was particularly high. Under these circumstances, the trial court abused its discretion in denying Griggs’s motion for mistrial.

Weak Verdict/Prosecutorial Error

In his final issue, Griggs argues that the verdict is weakly supported by the evidence and the prosecution’s case was fraught with error. However, we have addressed the factual sufficiency of the evidence and Griggs does not present any additional prosecutorial errors for our review. Thus he presents no additional issue for our review.

CONCLUSION

Finding that the trial court abused its discretion in denying Griggs’s motion for a mistrial, we reverse the judgment and remand the cause for a new trial.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

The majority grasps onto a new statement from Young and drops its prior discussion of Lankston. Young v. State, 137 S.W.3d 65 (Tex.Crim.App.2004); Lankston v. State, 827 S.W.2d 907 (Tex.Crim.App.1992). If the majority would embrace the entirety of what the court said in Young, there is no doubt in my mind that this ease would not be reversed. The majority, however, fails to perform a proper analysis of the manner in which the evidence was admitted and the timing of the motions made by the defense.

So, if the reader will indulge me, only for a little while, in the second portion of this dissenting opinion I will attempt to explain where the majority errs. But first I must give the procedural history for the sake of those that follow after us.

PROCEDURAL PRELUDE

In the past we have withdrawn so few opinions that no particular problem was created if the opinion was withdrawn by an order separate from the new opinion being issued. The problem is that over the past year we have withdrawn numerous opinions, with and without motions for rehearing, and when on motion for rehearing, with and without requesting responses. Issuing multiple opinions in the same appeal creates confusion. A person can hold in their hands two opinions from this Court, both certified by the clerk as authentic, which are not the same. Our past practice has been that the latter normally does not reference the existence of the earlier opinion that is being withdrawn.

Our past practice did not present a problem when the issuance of another opinion in the same case was rarely done. At least the problem was manageable. But due to the greatly increased frequency of the majority issuing multiple opinions, I thought it was an appropriate time to adopt the procedure utilized by the Texas Supreme Court; to include the order, and explanation if needed, withdrawing the pri- or opinion as the first paragraph of the new opinion. See e.g., Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 381 (Tex.2000).

This is a simple procedure for the convenience of anyone reading the opinions to understand and easily determine which opinion is the Court’s final opinion. This process also allows a researcher, interested in the ultimate disposition, to easily track backwards, if necessary, to see the development of the final opinion. Because the majority refuses to provide that information in its opinion, I do so in this dissenting opinion.

History of This Court’s Opinion

The State’s Motion for rehearing is denied. The Court’s opinion reversing the trial court’s judgment, the judgment, and Chief Justice Gray’s dissenting opinion, all dated February 2, 2005, are withdrawn and the Court’s opinion, Chief Justice Gray’s dissenting opinion, and the judgment of this date are substituted therefore.

With these comments regarding the history of this appeal, I now proceed to the substance of my dissenting opinion.

Substantive Part

Dissenting Opinion

We must first address whether an issue is properly preserved for our review. In its earlier opinion the majority determined the issue was preserved and relied upon Lankston as follows:

Under these circumstances, Griggs’s actions were sufficient to preserve the complaint about the mistrial ruling. See Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992) (“all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial court judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.”)

Griggs v. State, No. 10-03-00286-CR, 2005 WL 241217, *4, 2005 Tex.App. LEXIS 866, *8 (Tex.App.-Waco Feb. 2, 2005) (withdrawn, April 13, 2005). In my original dissent, I pointed out that although the majority quoted Lankston, they then ignored it.

The majority’s earlier opinion triggered two responses; one predictable, and the other very rare. In a predictable response to the opinion, the district attorney filed a motion for rehearing. The district attorney, in an effort to refocus the majority on the operative part of Lankston, forcefully argued that the issue was not preserved for our review because the objection and motion for mistrial were not made “at a time when the trial court [was] in a proper position to do something about it.” The district attorney pointed out the delay in making the motion for mistrial, which was made long after and separated by time and events from the acts about which complaint was made.

And in a rare move, the second response to the majority’s earlier opinion was that the State Prosecuting Attorney submitted a friend-of-the-court brief in support of the district attorney’s motion for rehearing. In addition to supporting the district attorney’s argument, the State Prosecuting Attorney also argued that the majority’s characterization of the purpose for requiring a timely objection was not accurate. The State Prosecuting Attorney pointed out that if

... the defendant timely objected when the evidence was offered, then any error or prejudice to the defendant could have been avoided by the trial court having sustained the objection and having not allowed the question to be asked. Or, in some cases, any prejudicial effect could have been removed by an instruction from the trial court to disregard the question and/or answer. In either of these situations, the radical, disruptive result of granting a mistrial and bringing the trial to a premature conclusion ... would have been avoided.

State Prosecuting Attorney’s Brief as Ami-cus Curiae in Support of State’s Motion for Rehearing, pg. 2.

Undaunted, the majority finds new hope in Young. Young v. State, 137 S.W.3d 65 (Tex.Crim.App.2004). The majority now lays down Lankston and picks up Young and hangs its hope of reversing this conviction on the following discussion in their new opinion:

However, an objection after an event occurs cannot fulfill the purpose of the objection, which is to prevent the occurrence of the event. Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App.2004). At the conclusion of the two witnesses’ testimony, Griggs made a motion for mistrial and requested an instruction. The trial court denied the motion for mistrial and instructed the jury before the next witness was called. Under these circumstances, Griggs’s actions were sufficient to preserve the complaint about the mistrial ruling. See id. (If an instruction could not have enabled the continuation of the trial by an impartial jury, “the only suitable remedy is a mistrial, and a motion for mistrial is the only essential prerequisite to presenting the complaint on appeal.”)

Majority op. at pp. 78-79.

The majority goes on to the conclusory statement that the “impression produced in the minds of the jurors — that Griggs might be a serial rapist of elderly women — was highly prejudicial and could not be cured by an instruction to disregard.” Of course, this is the necessary conclusion of the harm analysis to reverse the conviction. The majority offers the reader no analysis to support this conclusion. I find no support for this conclusion in the case law, this record, or the majority opinion. I will briefly comment on this analysis but must first focus on preservation of the issue for our review.

The majority’s analysis of preservation is fundamentally flawed. What the majority has to do is base its determination of preservation of the issue for our review on the motion for mistrial. The motion for mistrial was made after several statements were made during testimony received from multiple witnesses, and the motion was not made until after the court raised the issue.

So before we accept the majority’s preservation analysis, maybe we need to do two things. First, we need to revisit the record. Second, we need to revisit Young and Lankston.

Please forgive the length of the record excerpts but to even begin to place the insignificance of this evidence in its proper light, a reader is entitled to see the manner in which the issue arose at trial. The following excerpts will give the reader the context in which four statements regarding multiple rapes were made. And remember these excerpts are from a lengthy record of other evidence. Please pay particular attention to the page numbers from the record on which these statements were made.

The first two statements were by Mr. Gravitt. Gravitt was a cellmate of Griggs for a period of time.

Q. What did you do — or what did you do with regards to Mr. Nichols, we were talking about that earlier?
A. I just, I put in a request to speak to Mr. Nichols about Griggs—
Q. Okay.
A. —and the statements he gave to me.
Q. All right. Now, what statement did Mr. Griggs give to you? Amongst other things tell the jury what Mr. Griggs told you.
A. That he raped some older women, and it went on quite a bit farther than that, you know, that — •
Q. Did he make a statement to you that he raped an old woman?
A. Yes, sir.
Q. What else did he say?
A. And that the cops was trying to get him and they wasn’t going to get him, they — they didn’t have nothing on him, he was going to win. I mean, be bragged — he bragged about it quite regularly.
Q. Did he do this one time or many times?
A. Many times.
Q. Did or did not Mr. Griggs say anything about where he had done this, this alleged rape?
A. Yes.
Q. And what did he say?
A. He said around where he lived.

(RR Vol. 10, page 57, line 3 to page 58, line 3) Note that no objection, request, or motion for mistrial was made. Then the following testimony was elicited. In this passage, note the District Attorney’s effort to avoid the complained of testimony.

Q. And tell the jury again what Mr. Griggs told you with respect to, amongst — leaving out the other things, about the rape of a lady?
A. Mr. Griggs—
Mr. Dunn: Your Honor, we object. I’m afraid that is a coaching, a leading. Your Honor, I have no way to protect the record in this case, and before this evidence is submitted, so I can protect the record, I’d like to take it out of the presence of the jury.
Mr. Keathley: Well, Your Honor, I’m trying to operate under the perimeters of the Motion in Limine with respect to what can be admitted and what cannot be.
The Court: I’ll tell you what, why don’t you ask specific questions with respect to this witness, and we’ll proceed in that fashion. If I perceive that there’s a difficulty with it, then I may take the rest of the testimony out of the presence of the jury, but I see no need to do it at this time.
Mr. Keathley: Okay. Thank you.
Q. (By Mr. Keathley) Did he or did he not admit to raping an elderly lady to you?
A. Yes, sir.
Q. What did he say with regards to just that — that point?
A. Just as I said in the statement, that he had raped older women—
Q. No, no. I said—
A. An older lady and that they — they was trying to catch him and they didn’t have nothing on him, he had it beat, I mean, and it went on and on, and you really got tired of hearing it.

(RR Yol. 10, page 59, line 22 to page 61, line 2) Note that no objection, request, or motion for mistrial was made after the portion of the testimony about which a complaint is now being made.

The next witness was Jason Grant. Officer Grant also made two references during his testimony that are at issue.

Q. What did Mr. Gravitt tell you in respect to the investigation of the rape ... ?
A. He told me that he was in the cell with Greg Griggs and Greg had told him that he had raped three elderly—
Q. Hold on. Mr. — Mr. Grant, with specifics as to Mr. Griggs only, what did Mr. Gravitt tell you?
A. That Griggs told him that he had raped three elderly women in his neighborhood and that he — he had told him about a towel and a screwdriver and that he was paranoid that we were trying to get his DNA so we could catch him.
Q. Okay. Did he use the actual term neighborhood?
A. I believe so.
Q. And did he use the actual term elderly?
A. Yes.
Q. What did that lead you to conclude?
A. Well, it led me to believe that Griggs was a suspect in this case.
Q. Did you know where Mr. Griggs lived prior to this?
A. Yes.
Q. And where was that?
A. On Ficklin.
Q. I show you State’s Exhibit No. 45. Again, would you point out Mr. Griggs’ home?
A. Right here. (Pointing)
Q. And would you point out [the victim’s] home?
A. Right there.
Q. Just to refresh the jury’s memory. How far away are they in proximate distance?
A. Maybe half a mile.

(RR Vol. 10, page 80, line 21 to page 81, line 24) Note that no objection, request, or motion for mistrial was made.

Another witness was then called. But before the witness was sworn, the jury was excused. And then the issue was raised by the trial court as to whether a limiting instruction should be given regarding extraneous offense evidence.

The Court: Mr. Dunn, how do you feel about that?
Mr. Dunn: Your Honor, I think in order to protect the record I need to make a motion for a mistrial—

(RR Voi. 10, page 95, lines 11-14).

This was the first time defense counsel requested a motion for mistrial, and he did not request an instruction to disregard until page 96, lines 5-7.

The trial court gave the following instruction to the jury:

The Court: Be seated. Members of the jury, before we resume the testimony in this ease there’s a brief instruction that I would like to give you. That instruction applies to all the evidence in this case and all the witnesses who have testified, but specifically the last two witnesses who have testified. The instruction of the Court is as follows: You shall not consider any testimony or evidence of alleged crimes or acts other than those which may relate to the alleged assault upon [the victim]. That is the Court’s instruction at this time.

(RR Yol. 10, page 97, lines 9-18)

To summarize:

1. Witness uses the term “women” in reference to the victims. No objection, request, or motion. Pg. 57.
2. Witness uses the term “women” in reference to the victims. No objection, request, or motion. Pg. 60.
3. Second witness references “three elderly women” as victims. No objection, request, or motion. Pg. 80.
4. Second witness references “three elderly women” as victims. No objection, request, or motion. Pg. 81.
5. The trial court raises the issue out of the presence of the jury. Pg. 92.
6. Motion for mistrial made for the first time. Pg. 95.
7. Request for instruction to disregard made for the first time. Pg. 96.
8. Trial court gives instruction to disre- . gard. Pg. 97.
9. The trial court also gave an instruction to disregard in the charge. CR 151.

With this foundation of what the record shows, let us revisit Young and Lankston. Remember the majority relies upon Young as the basis that Griggs preserved this issue for review because he moved for a mistrial 40 pages (and two witnesses) after the first potentially objectionable evidence was introduced, and during these 40 pages, four potentially objectionable references were made. The last potentially objectionable evidence occurred in the record 14 pages before the motion for mistrial.

Does Young speak to this? You bet it does. Does the majority ignore this part of Young? You bet it does.

The Court of Criminal Appeals in Young anticipated the very problem the majority is exploiting to reverse this case. The Court of Criminal Appeals stated:

We recognize the potential for abuse of a ruling allowing a motion for mistrial without a preceding objection or request for instruction to disregard. If a party delays [making the] motion for mistrial and by failing to object allows for the introduction of further objectionable testimony or comments and greater accumulation of harm, the party could no more rely on this untimely motion for mistrial than on an untimely objection. This appellant’s [Young’s] motion for mistrial was not so delayed.

Id. at 70.

Griggs’s motion for mistrial was delayed. Therefore, Griggs “could no more rely on the untimely motion for mistrial than on an untimely objection.” See id. For this reason, I would not reach the issue used by the majority to reverse this case. Without preservation of the issue, nothing is presented for review.

And by its failure to now cite or discuss Lankston, the case relied upon in the earlier opinion, the reader may assume the majority believes the Court of Criminal Appeals has changed the rule in Young. This assumption would be wrong for two reasons:

1. The rule in Lankston and Young are essentially the same rule, and
2. Young does not mention Lankston and does not overrule it.

We do not have to put Lankston down to pick up Young. These two opinions are not inconsistent and Young does not “change the rule” regarding preservation. Even after Young,

(“all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial court judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.”).

Griggs v. State, No. 10-03-00286-CR, 2005 WL 241217, *4, 2005 Tex.App. LEXIS 866, *8 (Tex.App.-Waco Feb. 2, 2005) (withdrawn, April 13, 2005).

What the majority’s holding supports, is that if the trial court had done nothing, there would be no preservation; but, because the trial court on its own raised the issue, there is reversible error. Am I the only one confused by that?

But let us assume for a moment that the issue was preserved for review. We must then ask whether the comments were such that an instruction to disregard would have cured the prejudice, if any. Young at 71. Without unnecessarily lengthening this dissenting opinion, when I consider the same factors and surrounding circumstances as the Court of Criminal Appeals did in Young, I reach the same conclusion in this case that they did in Young. Id. at 71-72. A timely instruction could have cured the prejudicial effect, if any.

This is particularly true if the request and instruction had been made after the first potentially objectionable comment, or even the second. Indeed, I believe the instruction could remove the prejudicial effect, if any, even when given, as it was, after the testimony of the two witnesses and again in the charge.

The majority makes no real analysis of whether this is the type comment, in the context of this entire trial, for which an instruction could have been effective in removing the prejudicial effect, if any, so that the defendant could still receive a fair trial. The majority seems to assume the jury would have been more interested in convicting someone, anyone, for the rape of multiple women, rather than the actual perpetrator. Balderdash. For obvious reasons, the jury would have no interest in convicting anyone other than the actual perpetrator, especially if the concern was a serial criminal. Conviction of anyone else would not stop future crime by the actual perpetrator and would cause the investigation to find the actual perpetrator to stop, thus leaving the actual perpetrator free to roam the streets.

Conclusion

In this case, a conscientious trial court judge made sure the defendant obtained a fair trial. As a result of the trial court’s action, including raising the issue and instructing the jury, a fair trial, possibly not a perfect trial, was obtained. The trial court weighed all the facts and circumstances regarding whether a mistrial was warranted, denied the late request, and gave an instruction. If the majority was present for the entire trial, maybe they would come to the same conclusion the trial court did, that a mistrial was unnecessary.

I was not there. On this record, the issue was not preserved, and the trial court certainly did not abuse its discretion in denying the motion for mistrial.

I dissent.


source: Caselaw Access Project

author: BILL VANCE, Justice.

license: Public Domain

text:
    Darrell McCLENTON, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00099-CR.
    Court of Appeals of Texas, Waco.
    April 20, 2005.

      James Kent Schuster, Hearne, for appellant.
    John C. Paschall, Robertson County Dist. Atty., Franklin, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Darrell McClenton was charged by indictment with the first-degree felony offense of aggravated robbery with the exhibition of a deadly weapon (handgun). A jury found McClenton guilty and assessed his punishment at 24 years’ imprisonment and a $10,000 fine. McClenton appeals, raising five issues.

We will overrule all five issues and affirm the trial court’s judgment.

Provision of Recorded Oral Statements

In his first issue, McClenton complains that the State did not “provide” his attorney with a copy of his recorded oral statements at least 20 days before trial, as required by article 38.22 of the Texas Code of Criminal Procedure, and that the trial court thus erred in admitting one of the statements (in which McClenton admitted committing the offense) into evidence.

Recorded oral statements of an accused, made as a result of custodial interrogation, are not admissible unless: “not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.” Tex.Code Ceim. PROC. Ann. art. 38.22, § 3(a)(1), (a)(5) (Vernon Supp. 2004-05). The State is not required to “give” defense counsel a copy of any recorded statements; rather, it is required to “provide access” to the statements. Lane v. State, 933 S.W.2d 504, 515-17 (Tex.Crim.App.1996). “So long as defense counsel is informed of the existence of the recording and is permitted reasonable access to a copy, the purpose of § 3(a)(5) has been met.” Id. at 516.

In this ease, the pretrial and trial occurred on February 18, 2003, and at the pretrial, the trial court heard McClenton’s motion to suppress his two recorded oral statements (audiotapes) on the ground that the State allegedly had not provided his attorney with copies of the two statements until February 10, 2003, which was within 20 days of trial. McClenton’s attorney, who had been appointed on August 27, 2002, told the trial court that he had never been told that copies of the tapes were available for him; that for “two or three months” he had the investigating officer’s report that refers to the recorded statements; that about two weeks before he had “re-read” the report and realized that there were two tapes; on February 10 he visited the district attorney’s office and obtained copies of the tapes; and that prior to then the tapes had not been “provided” to him.

The district attorney informed the trial court that copies of the tapes (of McClen-ton and two others charged with the robbery) were made on January 6, 2003; that the copies had been in the district attorney’s file and available for defense counsel since then; that his office had an “open-file policy”; that the file had been open since the case was filed; that he furnished defense counsel with the written offense report; and that as far as he knew, McClen-ton’s attorney had knowledge of the tapes and their availability.

Several courts have addressed similar scenarios. For example, in Tinker v. State, the defendant argued that his recorded statements were improperly admitted because the State failed to provide defense counsel with copies at least 20 days before trial. Tinker v. State, 148 S.W.3d 666 (Tex.App.-Houston [14th Dist.] 2004, no pet. h.). The defense attorney admitted that he was aware of his client’s taped statements and that he had free access to his client’s file at the district attorney’s office, but the tapes were not in the file. The prosecutor noted that the tapes are not kept in individual files but are kept in a separate filing cabinet and that defense counsel could have obtained them from that cabinet. Following Lane, the court of appeals found: “Nothing in the record indicates defense counsel specifically requested or was denied access to the tape recorded statements at any time prior to trial. Where, as here, defense counsel is aware of the existence of taped statements, the State is only required to ‘permit reasonable access’ to a copy.” Id. at 673.

Likewise, we read McClenton’s trial attorney’s statements to the trial court to be that he was aware of the recorded statements two to three months before trial and that he knew he had access to them. We thus follow Lane and hold that the State “provided” the tapes because McClenton’s trial attorney was aware of the recorded statements and had access to them. Lane, 933 S.W.2d at 516. We overrule the first issue.

Victim-Impact Testimony

McClenton’s second issue complains that the trial court erred in admitting “victim-impact” testimony during the guilt-innocence phase of the trial. Specifically, he complains of the following State-elicited testimony of Diane Kempenski, the clerk of the convenience store (the A-l Drive In) allegedly robbed by McClenton and three others:

Q. Now, were you placed in fear of imminent bodily injury or death by these defendants who robbed the A-l Drive In?
A. Yes, sir.
Q. Tell the jury how you felt while this robbery was going.
A. I though they were going to kill me. I kept telling them, you know, “Please don’t kill me, just take whatever you want.” When you’ve got a gun to your face, it’s hard.
Q. Are you still working there at the A-l?
A. Yes, I am.
Q. How do you feel now working there after August 18? Is it any different from the way you felt before August 18?
A. Yes, sir, it is.
[DEFENSE ATTORNEY] Judge, I’m going to object to relevance.
THE COURT: Overruled.
Q. Describe that feeling that you have now that you did not have prior to your encounter with those four individuals who robbed you?
[DEFENSE ATTORNEY] Judge, I am going to again object to relevance and would ask for a running objection.
THE COURT: Running objection is noted, same is overruled.
A. Do I answer it?
Q. Yes.
A. Well, now I am more cautious who comes in. I watch more. I stay more around the register. I don’t go to my cooler hardly at all once night comes. I wait until — I lock the doors before I do anything, because I’m really afraid. It’s a bad feeling when you see somebody walk up while I’m doing something or turn around and somebody is there. It just startles me, you know. I think it’s somebody else trying to come in and do the same thing. It’s just not the same.

Relying on Stavinoha v. State, McClenton urges that this testimony was irrelevant and inadmissible and that the trial court abused its discretion in overruling his objections and admitting the testimony. See Stavinoha v. State, 808 S.W.2d 76, 78 (Tex.Crim.App.1991) (citing Miller-El v. State, 782 S.W.2d 892, 895 (Tex.Crim.App.1990)). The crime’s aftereffects on the victim is not relevant at the guilt-innocence phase. Garrett v. State, 815 S.W.2d 333, 337-38 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd) (citing Miller-El).

We agree with McClenton (and with the State’s concession) that Kempenski’s testimony about how she felt after the robbery was irrelevant and that the trial court abused its discretion in overruling McClen-ton’s relevance objections and admitting this testimony.

Having found error, we must conduct a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure, which provides that a noncon-stitutional error “that does not affect substantial rights must be disregarded.” Tex. R.App. P. 44.2(b); see Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002). While we consider the harm, if any, caused by the admission of the testimony, we will disregard any error that does not affect a substantial right of the defendant. Id.; Haynes v. State, 85 S.W.3d 855, 859 n. 4 (Tex.App.-Waco 2002, pet. ref'd). “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). We do not reverse if, “after examining the record as [a] whole, [we have] fair assurance that the error did not influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998); see also Schutz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App.2001). The reviewing court should consider everything in the record, including all the evidence admitted, the arguments, and voir dire. Motilla, 78 S.W.3d at 355-57. The strength of the evidence of guilt, especially if it is overwhelming, is a factor to be considered. Id. at 356-58; Haynes, 85 S.W.3d at 859 n. 4. However, if we have “grave doubt” about whether the error did not affect the outcome, then the error is treated as if it did affect the outcome. Thomas v. State, 137 S.W.3d 792, 796 (Tex.App.-Waco 2004, no pet.) (citing Fowler v. State, 958 S.W.2d 853, 865 (Tex.App.-Waco 1997), aff'd, 991 S.W.2d 258 (Tex.Crim.App.1999)).

After examining the evidence as a whole, we conclude that the admission of the testimony had no effect on the jury. Johnson, 967 S.W.2d at 417; Castillo, 910 S.W.2d at 127-28; Garcia, 827 S.W.2d at 30. The record includes McClenton’s recorded statement in which he admitted to committing the robbery and holding the gun. This, along with the other testimony linking McClenton to the crime, is more than enough evidence of guilt to render the erroneous admission of the testimony harmless. See Motilla, 78 S.W.3d at 357-58. While the State did mention during closing argument the fear that a person would have while being robbed at gunpoint by four masked people, it was not a reference to the victim’s irrelevant after-effects testimony, but was in response to the defense’s closing argument in which the victim’s credibility was attacked over her description of the robber who “scared the hell out of her with a gun.”

We cannot say that we have “grave doubt” about whether the error affected the outcome. Thomas, 137 S.W.3d at 796. Given the strength of the evidence of guilt, we find the erroneous admission of the testimony harmless. Motilla, 78 S.W.3d at 357-58; cf. Garrett, 815 S.W.2d at 338. Accordingly, we overrule McClenton’s second issue.

Confrontation-Clause Violation

McClenton asserts in a third issue that the trial court erred in admitting hearsay testimony by Officer Jerry Stover relating to statements made to Stover by two of McClenton’s codefendants and accomplices, Charlie Smith and Patrick Johnson. McClenton alleges that this hearsay testimony violated his Confrontation-Clause rights under the Sixth Amendment.

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause’s central concern is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversarial proceeding before the trier of fact. Lilly v. Virginia, 527 U.S. 116, 123-24, 119 S.Ct. 1887, 1894, 144 L.Ed.2d 117 (1999). The United States Supreme Court recently held that testimonial statements of witnesses absent from trial are admissible over a Sixth Amendment Confrontation Clause objection only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1368-69, 158 L.Ed.2d 177 (2004). The Sixth Amendment right of confrontation is a fundamental right and is applicable to the states by virtue of the Fourteenth Amendment. Shelby v. State, 819 S.W.2d 544, 546 (Tex.Crim.App.1991) (citing Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965)). We review de novo the trial court’s ruling that the admission of Stover’s testimony did not violate McClenton’s Confrontation-Clause rights. Lilly, 527 U.S. at 136-37, 119 S.Ct. at 1900.

Statements taken by police officers in the course of interrogations are testimonial. Crawford, 541 U.S. at 52, 124 S.Ct. at 1364. Stover investigated the aggravated robbery of the A-l Drive In. In addition to obtaining two recorded statements from McClenton, he obtained recorded statements from Smith and Johnson, both of whom implicated themselves and McClenton in the robbery. Under Crawford, the recorded statements of Smith and Johnson made to police during custodial interrogation constitute testimonial evidence. Id. The State agrees that their statements are “testimonial” and that Crawford applies, but it argues that McClenton “opened the door” by first asking Stover on cross-examination about Smith’s statement:

Q. You actúally had an opportunity to talk to Charlie Smith in the Brazos County Jail?
A. Yes, sir.
Q. You talked to him there in the Brazos County Jail about the circumstances surrounding this case, is that correct?
A. Yes, sir.
Q. And that was your intent to do so?
A. Yes, sir.
Q. And in your conversations with Mr. Smith, did he indicate that someone other than Darrell McClenton was wielding the pistol?
A. Yes, sir.
Q. In fact, he indicated that someone other than Darrell McClenton was actually the first one into the store, correct?
A. This is Mr. Smith’s testimony?
Q. Yes, sir.
A. Yes, sir.

On redirect examination, the State asked Stover more questions about Smith’s statement, but it also began asking questions about Johnson’s statement, about which McClenton had not cross-examined Stover. Over McClenton’s hearsay and Confrontation-Clause objections and his assertion that he had not opened the door as to Johnson’s statement, the trial court allowed Stover to testify that Johnson said in his statement that McClenton held the gun in the robbery (which McClenton admitted in his own statement), that Smith was the driver, and that they had gone to a Bremond housing complex before the robbery (which McClenton denied in his statement).

Otherwise inadmissible evidence may be admitted if the party against whom the evidence is offered “opens the door,” but the party offering the evidence may not “stray beyond the scope of the invitation.” Schutz v. State, 957 S.W.2d 52, 71 (Tex.Crim.App.1997) (quoting Bush v. State, 773 S.W.2d 297, 301 (Tex.Crim.App.1989)); see Clay v. State, 102 S.W.3d 794, 797 (Tex.App.-Texarkana 2003, no pet.); Bell v. State, 867 S.W.2d 958, 962 (Tex.App.-Waco 1994, no pet.). It is not error to admit hearsay evidence in a criminal case over objection when it goes to clarify other hearsay evidence elicited by the opposition. Bunton v. State, 136 S.W.3d 355, 367 (Tex.App.-Austin 2004, pet. ref'd).

We conclude that McClenton “opened the door” as to Smith’s statement and the trial court properly allowed the State to question Stover about Smith’s statement, but the court allowed the State to “stray beyond the scope of the invitation” by eliciting testimony from Stover about Johnson’s statement, over McClen-ton’s objections. McClenton did not have a prior opportunity to cross-examine Johnson about his statement, and it is not disputed that Johnson, who was awaiting trial on the same charge, was unavailable. The admission of a testimonial statement by an accomplice or codefendant as evidence of guilt of the defendant on trial, absent opportunity by the defendant to cross-examine the declarant, is “sufficient to make out a violation of the Sixth Amendment.” Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. Thus, the trial court’s ruling on the admissibility of Stover’s testimony as to Johnson’s statement violated McClenton’s Sixth Amendment Confrontation Clause rights. Stover’s testimony about Johnson’s statement was not admissible against McClenton, and the trial court erred in ruling otherwise. See id.

Because a violation of the Sixth Amendment right of confrontation constitutes constitutional error, we must reverse a trial court’s judgment when Confrontation-Clause error is present unless we can determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex.R.App. P. 44.2(a) (requiring reversal of constitutional error unless the appellate court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment); see Wall v. State, 143 S.W.3d 846, 851-52 (Tex.App.-Corpus Christi 2004, no pet. h.); Hale v. State, 139 S.W.3d 418, 422 (Tex.App.-Fort Worth 2004, no pet. h.).

In determining harm from Confrontation-Clause error, we are to apply the factors enunciated in Delaware v. Van Arsdall. See Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Shelby, 819 S.W.2d at 547, 550-51. The Van Arsdall harm factors are the importance of the witness’s testimony; whether the testimony was cumulative; the presence or absence of evidence corroborating or contradicting material points of the witness’s testimony; the extent cross-examination was permitted; and the overall strength of the State’s case. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438. If, applying these factors, we cannot determine beyond a reasonable doubt that the Confrontation Clause violation did not contribute to the appellant’s conviction or punishment, we must reverse the trial court’s judgment. Tex.R.App. P. 44.2(a); Shelby, 819 S.W.2d at 546-47. In making this determination, we do not focus on the propriety of the trial’s outcome but on calculating, as nearly as possible, the probable impact of the error on the jury in light of the other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App.2000); Bratton v. State, 156 S.W.3d 689, 693 (Tex.App.-Dallas 2005, no pet. h.). In other words, the question is not whether the legally admitted evidence is sufficient to support the conviction. McCarthy v. State, 65 S.W.3d 47, 55 (Tex.Crim.App.2001) (quoting Satterwhite v. Texas, 486 U.S. 249, 258-59, 108 S.Ct. 1792, 1798, 100 L.Ed.2d 284 (1988)). Rather, the question is whether the complained-of statement contributed to the jury’s verdict, regardless of the sufficiency of the evidence, independent of the statement, to sustain the conviction. Id. Asked in another way, the question is whether a reasonable probability exists that the error moved the jury from a state of nonpersuasion to one of persuasion as to the issue in question. Wesbrook, 29 S.W.3d at 119; Bratton, 156 S.W.3d at 693.

MeClenton was convicted of aggravated robbery. He admitted to the offense and to pointing the gun at Kempenski, the store clerk, in two separate recorded statements with Stover. A witness who lived in Bremond near the store testified that earlier on the evening of the robbery, MeClenton (whom she identified in court) and three other black males were in a car that drove up to her and asked her what time the store closed. Another local witness testified and corroborated the testimony regarding descriptions of the car, the four men, and that they asked what time the store closed. Their descriptions of the four men were consistent with Kem-penski’s descriptions.

In his first recorded statement, McClen-ton identified three accomplices in the robbery and provided details of it, including that he pointed a loaded gun at the store clerk. When MeClenton was later confronted by Stover that one of the alleged accomplices could not have participated in the robbery because he was in prison, MeClenton gave a second recorded statement in which he changed the names of two accomplices and asserted that the gun was not loaded.

Stover’s testimony about Johnson’s statement was largely cumulative of lawfully admitted evidence. There was adequate evidence corroborating McClenton’s and Smith’s recorded statements confessing to the robbery. One of the witnesses previously knew and identified MeClenton as being in Bremond that evening with three other black males and asking her what time the store closed, and a second witness gave similar testimony. On the day after the robbery, after hearing about it, one of the witnesses went to the store and told the owner about seeing and talking to MeClenton the night before, and she later told Stover the same information. And given McClenton’s two recorded statements confessing to the robbery, the State overall had a strong case. Disregarding Stover’s testimony about Johnson’s statement, the lawfully admitted evidence overwhelmingly proved McClenton’s guilt. See Wall, 143 S.W.3d at 852. Given this case’s record, which we have carefully reviewed, we conclude beyond a reasonable doubt that the admission of Stover’s testimony about Johnson’s statement did not contribute to McClenton’s conviction or punishment. See Bratton, 156 S.W.8d at 694-95. Accordingly, we hold that the trial court’s error was not harmful and thus overrule McClenton’s third issue.

Impermissibly Suggestive Photo Line-Up

In his fourth issue, McClenton says the trial court erred in the punishment phase by admitting an allegedly tainted photo line-up conducted in connection with an extraneous offense (aggravated robbery) allegedly committed by McClenton.

An in-court identification is inadmissible if tainted by an unduly suggestive pretrial identification. See Loserth v. State, 963 S.W.2d 770, 771 (Tex.Crim.App.1998). In determining whether the trial court erred in admitting an in-court identification, we employ a two-step analysis, inquiring: (1) if the pretrial procedure was impermissibly suggestive; and (2) if so, whether the impermissibly suggestive pretrial procedure gave rise to a very substantial likelihood of irreparable misidenti-fication at trial. See Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Crim.App.1999); Delk v. State, 855 S.W.2d 700, 706 (Tex.Crim.App.1993). It is the risk of in-court misidentification that taints the identification. See Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App.1988). The defendant has the burden to show by clear and convincing evidence that the in-court identification is unreliable. See Delk, 855 S.W.2d at 706. The admissibility of an identification is a mixed question of law and fact that we review de novo. See Loserth, 963 S.W.2d at 773.

In the first step, we evaluate the pretrial photo line-up itself to determine whether it was impermissibly or unduly suggestive. “A lineup is considered unduly suggestive if other participants are greatly dissimilar in appearance from the suspect.” Withers v. State, 902 S.W.2d 122, 125 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd) (citing United States v. Wade, 388 U.S. 218, 232-233, 87 S.Ct. 1926, 1935, 18 L.Ed.2d 1149 (1967)). A suspect may be greatly dissimilar in appearance from the other participants because of his distinctly different appearance, race, hair color, height, or age. See id. (citing Foster v. California, 394 U.S. 440, 442-43, 89 S.Ct. 1127, 1128, 22 L.Ed.2d 402 (1969)). But minor discrepancies between line-up participants do not render a line-up impermissibly suggestive. See id. (citing Partin v. State, 635 S.W.2d 923, 926 (Tex.App.-Fort Worth 1982, pet. ref'd)). The line-up participants need not be identical to satisfy due process requirements. See Buxton v. State, 699 S.W.2d 212, 216 (Tex.Crim.App.1985).

McClenton asserts that his photograph in the photo line-up was overly different in characteristics from the other five photographs because the height line of two photographs was not “even close” to the others and the other individual closest in weight to McClenton was 18 pounds heavier than him.

The extraneous-offense aggravated robbery was investigated by Sergeant Vince Angele of the Hearne Police Department, who generated photo line-ups from descriptions that he obtained from the three complainants (one who was struck on the head with a gun butt and one who was shot in the buttocks). He prepared the photo line-ups using a computer program that generates random photographs based on parameters defined by the user.

We have reviewed the photo line-up that McClenton complains of, and we find that none of the other photographed participants are dissimilar in appearance from McClenton. The six color photographs depict six black males of generally the same age, weight, height, and appearance. The height difference between the tallest and shortest is only four inches, and the height differences are not even readily apparent because of various, slight differences in distances between the camera and the subjects. And because all the photographs depict the subjects from the top of the shoulders and up, the various weight differences are not noticeable. We conclude that the photo line-up is not impermissibly suggestive.

McClenton also claims that the trial court erred by letting Sergeant An-gele and the three alleged victims testify about their prior photo line-up identification of McClenton, by admitting the photo line-ups that all three used, and by then allowing all three to identify McClenton in the courtroom. McClenton asserts that this amounted to “impermissible bolstering.” But because McClenton did not object on this ground in the trial court and cites no authority in his brief, this complaint has not been preserved and also has not been adequately briefed, presenting nothing for review. Tex.R.App. P. 33.1(a), 38.1(h); Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App.2000); Walder v. State, 85 S.W.3d 824 (Tex.App.-Waco 2002, order). We overrule McClenton’s fourth issue.

Punishment Charge Error

McClenton’s final issue points to Huizar v. State to show that the trial court erred in the punishment-phase charge by not including a reasonable-doubt instruction on the extraneous-offense evidence admitted during the punishment phase. See Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App.2000). The State concedes error but notes that McClenton’s trial counsel did not object to this charge error, which his appellate counsel concedes.

An unpreserved complaint about a charge error in a criminal case is reviewed for “egregious harm.” Huizar, 12 S.W.3d at 484-85; Almanza v. State, 686 S.W.2d 157, 171-72 (Tex.Crim.App.1985). Errors that result in egregious harm are those that affect “the very basis of the case,” deprive the defendant of a “valuable right,” or “vitally affect a defensive theory.” Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) (citing Almanza, 686 S.W.2d at 172). In deciding whether egregious harm exists, we look at (1) the charge itself, (2) the state of the evidence, including contested issues, (3) the arguments of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. Id. In asserting egregious harm, McClenton focuses on the unadjudicated aggravated robbery that we addressed in McClenton’s fourth issue.

McClenton’s trial began on February 18, 2004, and the jury found him guilty that day. The guilt-innocence charge did contain a reasonable-doubt instruction for extraneous offenses. The punishment phase began immediately but was not completed until the next day. The State stipulated that McClenton was eligible for community supervision. With a punishment range of 5 to 99 years for aggravated robbery, he received a 24-year sentence.

In- his closing, McClenton’s- trial attorney argued to the jury that for them to consider the unadjudicated aggravated robbery, they had to believe that it was McClenton who committed that offense “beyond a reasonable doubt,” and he then mentioned twice more “beyond a reasonable doubt.”

In both phases of the trial there was no mention of any burden of proof other than “beyond a reasonable doubt.” McClenton does not argue on appeal that the evidence was insufficient to prove beyond a reasonable doubt that he committed the unadju-dicated aggravated robbery, for which he attacked the credibility of the three complainants because of minor discrepancies, their prior drug use, and because they changed their story because the alleged robbery occurred during a drug buy that they did not initially reveal to law enforcement.

Having viewed the entire record, we do not find that “the very basis of the case” was affected or that McClenton was deprived of a “valuable right” as a result of the omitted reasonable-doubt instruction in the trial court’s punishment charge. McClenton’s fifth issue is overruled.

Conclusion

Having overruled all of McClenton’s issues, we affirm the trial court’s judgment.

      . See also Atnip v. State, 1998 WL 393970 (Tex.App.-Austin 1998, no pet.) (not designated for publication) (holding that where defense attorney knew tape existed and State asserted that tape was available and defense could have obtained it any time, tape was made available and State did not have to deliver it); Riley v. State, 1997 WL 466555 (Tex.App.-Houston [1st Dist.] 1997, no pet.) (not designated for publication) (holding that where defense counsel had transcript and incomplete copy of recorded statement and thus was on notice of existence and content of statement several months before trial, defendant had been "provided” with statement).

      . We review a trial court’s decision to admit evidence for an abuse of discretion. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App.1999); Gipson v. State, 82 S.W.3d 715, 721 (Tex.App.-Waco 2002, no pet.).

      . In its brief, the State “concedes that this question did elicit testimony from the victim regarding the after-effects of Appellant’s crime” and that "victim impact testimony is, as a general rule and in and of itself, irrelevant to the issue of Appellant’s guilt and is more commonly viewed as a proper consideration during the punishment phase of the trial.”


author: FELIPE REYNA, Justice.

text:
    Kevin Michael SHEA, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00180-CR.
    Court of Appeals of Texas, Waco.
    April 20, 2005.
    Rehearing Overruled June 14, 2005.

      R. David Holmes, The Holmes Law Firm, Hillsboro, for appellant.
    Walter M. Reaves, West, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Kevin Michael Shea of indecency with a child. The jury found enhancement allegations “true” and assessed his punishment at ninety-nine years’ imprisonment. Shea contends in six issues that the court erred by: (1) denying his motion to dismiss premised on speedy trial grounds; (2) failing to promptly provide a limiting instruction when evidence of extraneous offenses was admitted; (3) admitting e-mails purportedly from Shea to the complainant because their authenticity was not established; (4) refusing to charge the jury on misdemeanor assault as a lesser-ineluded offense; (5) overruling an objection to the State’s comment during punishment argument about Shea’s absence from the proceedings; and (6) appointing an attorney pro tem who was serving a federal probation at the time of trial. We will affirm.

The Attorney Pro Tem Was “Competent” To Represent The State

Shea contends in his sixth issue that the court abused its discretion by appointing as attorney pro tem an attorney who was serving a federal probation for misprision of a felony at the time of trial. Because Shea presented no evidence that the attorney pro tern’s license had been suspended or that he was not otherwise a “member in good standing” of the State Bar, we hold that no abuse of discretion is shown.

Article 2.07(a) of the Code of Criminal Procedure provides:

Whenever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of his office, or in any instance where there is no attorney for the state, the judge of the court in which he represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state.

Tex.Code CRIM. PROC. Ann. art. 2.07(a) (Vernon 2005).

When the appointment of an attorney pro tem is necessary under article 2.07, the decision of whom to appoint lies within the discretion of the trial court. See Loshe v. State, 160 Tex.Crim. 561, 272 S.W.2d 517, 520 (1954); Davis v. State, 840 S.W.2d 480, 487 (Tex.App.-Tyler 1992, pet. ref'd); State ex rel. Sherrod v. Carey, 790 S.W.2d 705, 709 (Tex.App.-Amarillo 1990, orig. proceeding). The only limitation imposed by the statute is that the court appoint a “competent attorney” to serve. Tex.Code CRIM. PROC. Ann. art. 2.07(a). However, the statute does not define that term.

We begin with the language of the statute. Sanchez v. State, 138 S.W.3d 324, 325 (Tex.Crim.App.2004). We may use a dictionary to assist in this endeavor. See id. at 325-26; Searcy v. State, 115 S.W.3d 628, 631 (Tex.App.-Waco 2003, no pet.). Webster’s defines the term “competent” to mean “legally qualified or adequate.” Merriamr-Webster’s Collegiate Dictionary 234-35 (10th ed.1993).

Section 81.102 of the State Bar Act provides that only members of the State Bar may practice law in this state, with some exceptions not applicable here. See Tex. Gov’t Code Ann. § 81.102 (Vernon 2005). The State Bar Rules define a “member in good standing” as “a member of the State Bar who is not in default in payment of dues and who is not under suspension from practice.” Tex. State BaR R. art. 1(6), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app (Vernon 2005).

According to the State Bar Rules, a member may practice law if he or she is not in default of payment of membership fees or other authorized assessments and if he or she has complied with the minimum continuing education requirements of the State Bar Rules. See Tex. State BaR R. art. Ill, §§ 5, 8, art. XII, § 8.

Shea does not contend that the attorney pro tem had failed to comply with these requirements. Rather, Shea contends that the attorney was disqualified because of his federal probation for misprision of a felony. However, Shea presented no evidence to the trial court regarding the status of the attorney pro tern’s membership with the State Bar. He argued only that the attorney should not be allowed to prosecute the case because he was on federal probation.

Because Shea presented no evidence that the attorney pro tern’s license had been suspended or that he was not otherwise a “member in good standing” of the State Bar, we cannot say that the court abused its discretion by overruling Shea’s objection to the appointment of the attorney pro tern in his case. Thus, we overrule his sixth issue.

Shea Was Not Denied His Right To A Speedy Trial

Shea contends in his first issue that he was denied his constitutional right to a speedy trial. Because Shea did not assert his speedy trial in a timely fashion and has not shown that his defense was prejudiced by the delay, we will overrule this issue.

We balance four non-exclusive factors when considering a speedy trial claim: (1) the length of the delay; (2) the reasons for the delay; (3) the timeliness of the defendant’s assertion of his right to a speedy trial; and (4) any prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972); Shaw v. State, 117 S.W.3d 883, 888-89 (Tex.Crim.App.2003).

The Supreme Court has described the first factor as “a triggering mechanism” for consideration of the remaining factors. Barker, 407 U.S. at 530, 92 S.Ct. at 2192; Shaw, 117 S.W.3d at 889. The State concedes that the 42-month delay in Shea’s case is presumptively prejudicial. Accordingly, we consider the remaining factors.

Shea’s trial was delayed for several reasons. He was arrested on the charge in December 1998 and released on bond the same day. The indictment was presented in February 1999. Shea filed continuance motions which were granted in May 1999 and November 1999. The court’s docket sheet indicates that the matter was called on a monthly basis beginning in March 1999 and that the first time Shea announced “ready” for trial was February 2000. From April 2000 until the trial in June 2002, Shea’s case was passed on six occasions because other (presumably older) cases were heard.

During the hearing on Shea’s speedy trial claim, the State cited an overcrowded docket and Shea’s continuance motions in this and a companion case as reasons for the delay. These are the same factors recited by the prosecution in Shaw. 117 S.W.3d at 889. And as the Court of Criminal Appeals concluded in that case, we too conclude that Shea’s continuances account for only “several months” of the 42-month delay. Id. Conversely, “a crowded court docket is not a valid reason for delay.” Id. at 890. Thus, this factor “weighs in favor of finding a violation of appellant’s right to a speedy trial.” Id.

Shea made his first and only speedy trial claim on the day of trial. “In view of the lengthy delay here, during most of which appellant quietly acquiesced, this factor weighs very heavily against finding a violation of his right to a speedy trial.” Id.

The right to a speedy trial was designed: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the defendant; and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193; Shaw, 117 S.W.3d at 890. Of these, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id.

Shea concedes that the issue of oppressive pretrial incarceration does not apply because he was on bond before trial. He notes that his motion to dismiss on speedy trial grounds alleges that the delay has caused him “undue anxiety, concern, and is oppressive to [him].” However, Shea presented no evidence at the hearing on the motion to support this assertion. Cf. Shaw, 117 S.W.3d at 890 (“appellant offered no evidence to the trial court that the delay had caused him any unusual anxiety or concern, ie., any anxiety or concern beyond the level normally associated with being charged with a felony sexual crime”).

Thus, Shea focuses on the third interest that the right to a speedy trial was designed to protect — limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193; Shaw, 117 S.W.3d at 890. Shea contends that his defense was impaired by the delay because his step-daughter had moved to another state at the time of trial and was unavailable to testify. At the speedy trial hearing, Shea offered no evidence of what the content of his step-daughter’s testimony would be, but he contends in his brief, “Any reasonable person would conclude that [her] testimony would have been extremely helpful to the trier of fact in determining guilt or innocence in this case.”

To establish prejudice because of an unavailable witness, a defendant must show that “the witness[ ][is] unavailable, that [her] testimony might be material and relevant to his case, and that he has exercised due diligence in his attempt to find [her] and produce [her] for trial.” Meyer v. State, 27 S.W.3d 644, 650 (Tex.App.-Waco 2000, pet. ref'd) (quoting Harris v. State, 489 S.W.2d 303, 308 (Tex.Crim.App.1973)); accord Ervin v. State, 125 S.W.3d 542, 548 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Shea’s unsubstantiated assertion that his step-daughter’s testimony “would have been extremely helpful” does not satisfy this test. See Harris, 489 S.W.2d at 308-09; Ervin, 125 S.W.3d at 548-549; Meyer, 27 S.W.3d at 650. Accordingly, this factor weighs against a finding of a speedy trial violation.

The 42-month delay and the reasons for the delay weigh in favor of a finding that Shea’s right to a speedy trial was denied. Conversely, Shea’s delay in asserting his right to a speedy trial and the lack of evidence that he was prejudiced by the delay weigh against such a finding. Under these circumstances, we cannot say that Shea’ right to a speedy trial was violated by the delay. Accordingly, we overrule Shea’s first issue.

The Trial Court Did Not Abuse Its Discretion By Failing To Give A Limiting Instruction Because The Acts Which The Parties Consider To Be “Extraneous” Were Not So Under The Indictment

Shea contends in his second issue that the court abused its discretion by failing to provide a limiting instruction when the State offered evidence of what the parties consider to be extraneous offenses. However, because each of the purported “extraneous” acts could have been prosecuted under the indictment, they were not extraneous, and no limiting instruction was required.

“An extraneous offense is defined as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers.” Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App.1996); Brown v. State, 6 S.W.3d 571, 575 n. 2 (Tex.App.-Tyler 1999, pet. ref'd); accord Rodriguez v. State, 104 S.W.3d 87, 91 (Tex.Crim.App.2003). “[T]he ‘on or about’ language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.” Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App.1997); accord Rodriguez, 104 S.W.3d at 91.

Here, the indictment alleges that Shea committed the offense of indecency with a child “on or about” June 10, 1998, “by touching the genitals and/or breast” of the complainant. The “extraneous” acts in question were two prior occasions when Shea touched the complainant’s breast, both of which occurred in 1996.

The statute of limitations for indecency with a child runs for ten years after the child’s 18th birthday. See Tex.Code Grim. PROC. Ann. art. 12.01(5)(A) (Vernon 2005). Both of the supposed “extraneous” acts occurred before the presentment of Shea’s indictment and within the statutory limitations period. Therefore, they are not “extraneous” offenses. See Rodriguez, 104 S.W.3d at 91; Sledge, 953 S.W.2d at 255-56; Rankin, 953 S.W.2d at 741; Brown, 6 S.W.3d at 575-76. Accordingly, no limiting instruction was required when the evidence was admitted. Thus, we overrule Shea’s second issue.

The Complainant Adequately Authenticated Shea’s Email Communications

Shea contends in his third issue that the court abused its discretion by admitting printed copies of a series of e-mail communications purportedly from Shea to the complainant because the e-mails were not properly authenticated.

We review a trial court’s evi-dentiary rulings under an abuse-of-discretion standard. Sauceda v. State, 129 S.W.3d 116, 120 (Tex.Crim.App.2004). The issue of authentication “arises whenever the relevancy of any evidence depends upon its identity, source, or connection with a particular person, place, thing, or event.” Kephart v. State, 875 S.W.2d 319, 321 (Tex.Crim.App.1994) (per curiam) (quoting 2 Steven Goode et al., Guide to the Texas Rules of Evidence § 901.1 (2d ed.1993)), overruled on other grounds, Angleton v. State, 971 S.W.2d 65, 69 (Tex.Crim.App.1998).

Rule of Evidence 901(b) provides several illustrations of how authentication can be established. Authentication may be established by testimony from a witness with knowledge that the document is what it is claimed to be. Tex.R. Evid. 901(b)(1); Wood v. State, 18 S.W.3d 642, 647 (Tex.Crim.App.2000); Guidry v. State, 121 S.W.3d 849, 851-52 (Tex.App.-Beaumont 2003, no pet.). Authentication may also be established by “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” Tex.R. Evid. 901(b)(4); Wood, 18 S.W.3d at 647; Massimo v. State, 144 S.W.3d 210, 215 (Tex.App.-Fort Worth 2004, no pet.).

The complainant testified that she was familiar with Shea’s e-mail address and that she had received the six e-mails in question from Shea. Thus, her testimony authenticates the e-mails. See Tex.R. Evid. 901(b)(1); Wood, 18 S.W.3d at 647; Guidry, 121 S.W.3d at 851-52.

The Fort Worth court has recently addressed the authentication of e-mail communications in terms of the distinctive characteristics of such communications. In Massimo, that court relied on a federal decision to enumerate several characteristics to consider when determining whether an e-mail has been properly authenticated. Massimo, 144 S.W.3d at 215-16 (citing U.S. v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir.2000)). Those characteristics include: “(1) consistency with the e-mail address on another e-mail sent by the defendant; (2) the author’s awareness through the e-mail of the details of defendant’s conduct; (3) the e-mail’s inclusion of similar requests that the defendant had made by phone during the time period; and (4) the e-mail’s reference to the author by the defendant’s nickname.” Id.

The six e-mails in question have several of these characteristics. They were sent to the complainant from two different e-mail addresses. The complainant testified that she came to know Shea’s e-mail address because he would call to confirm that she had received an e-mail from him. The first three e-mails bore this address. In the fourth e-mail, Shea asked the complainant to no longer use the former address but to use the new address from which he had sent the fourth e-mail. The latter three e-mails bore this new address. In addition, Shea himself offered in evidence eight e-mails from the complainant to him at this new address.

Two of the e-mails offered by the State make reference to Shea’s occupation as a furniture maker. In one of the e-mails, Shea commented that he liked the complainant’s locker number. She explained in her testimony that this comment was significant because her locker number had the numerals “22” in it and Shea is twenty-two years older than she.

The complainant testified that the content of the e-mails was similar to conversations she had had with Shea over the telephone. Four of the e-mails were signed “Kev.”

For these reasons, the court did not abuse its discretion by admitting the emails over Shea’s objection to lack of authentication. See Massimo, 144 S.W.3d at 216-17. Accordingly, we overrule Shea’s third point.

Misdemeanor Assault By Offensive Or Provocative Contact Is Not A Lesser-included Offense Of Indecency With A Child

Shea contends in his fourth issue that the court erred by failing to charge the jury on misdemeanor assault by offensive or provocative contact as a lesser-included offense of indecency with a child. Because these offenses have distinctive elements, we disagree.

A jury charge on a lesser-included offense is required if (1) the lesser-included offense is included within the proof necessary to establish the offense charged; and (2) some evidence exists in the record that if the defendant is guilty, he is guilty of only the lesser offense. Hampton v. State, 109 S.W.3d 437, 440 (Tex.Crim.App.2003). Article 37.09 defines when a lesser offense is included within the proof necessary to establish the offense charged. See TexCode CRiM. Prog. Ann. art. 37.09 (Vernon 1981).

As pertinent to this case, article 37.09 provides that an offense is a lesser-included offense if:

• “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;” or
• “it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission.”

TexCode CRiM. Peoc. Ann. art. 37.09(1), (3).

Shea contends that assault by offensive or provocative touching meets the latter definition of a lesser-included offense because “the culpability of the mental state of assault [is] less than that of indecency with a child.” Although this may be true in terms of moral or social culpability, it is not a true statement insofar as the legal definitions of these offenses are concerned.

As Shea also observes in his brief, “The mental states required of the two crimes differ.” It is the differences in the requisite elements which lead to the conclusion that assault by offensive or provocative contact is not a lesser-included offense of indecency with a child by contact.

Under the statute applicable to Shea’s case, a person commits the offense of indecency with a child by engaging in “sexual contact” with the child. See Act of May 29, 1993, Act of May 29,. 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 21.11(a)(1), 1993 Tex. Gen. Laws 3586, 3616 (amended 2001) (current version at Tex. Pen.Code Ann. § 21.11(a)(1) (Vernon 2003)). The former statute defined the term “sexual contact” to be any proscribed touching done “with the intent to arouse or gratify the sexual desire of any person.” Id., sec. 21.01(2), 1993 Tex. Gen. Laws 3586, 3615 (amended 2001) (current version at Tex. Pen.Code Ann. § 21.11(c) (Vernon 2003)).

Conversely, the offense of assault by offensive or provocative contact is committed when a person “knows or should reasonably believe that the other will regard the contact as offensive or provocative.” Tex. Pen.Code Ann. § 22.01(a)(3) (Vernon 2003).

The indecency charge required the State to prove that Shea acted with intent to arouse or gratify the sexual desire of some person, not that he knew or should have reasonably believed that the complainant would regard his touching as offensive or provocative. Even though the same evidence may be probative of both elements, they are distinctive elements. See Ramos v. State, 981 S.W.2d 700, 701 (Tex.App.Houston [1st Dist.] 1998, no pet.); accord Stafford v. State, No. 02-02-00477-CR, 2003 WL 22923034, at *2, 2003 Tex.App. LEXIS 10439, at *7-8 (Tex.App.-Fort Worth Dec. 11, 2003, pet. ref'd) (mem.op.).

The proof required to establish assault by offensive or provocative contact is different, not less, than that required to prove indecency with a child by contact. Thus, the misdemeanor assault charge is not a lesser-included offense. See Tex. Code CRiM. PROc. Ann. art. 37.09(1); Ramos, 981 S.W.2d at 701; see also Stafford, 2003 WL 22923034, at *2, 2003 Tex.App. LEXIS 10439, at *7-8. Accordingly, we overrule Shea’s fourth issue.

The Prosecutor Did Not Comment On Shea’s Failure To Testify During The Punishment Argument

Shea contends in his fifth issue that the prosecutor impermissibly commented on his failure to testify by mentioning Shea’s absence from the courtroom during the punishment argument. Because the prosecutor did not comment on Shea’s failure to testify, we disagree.

It is well settled that a prosecutor’s comment amounts to a comment on a defendant’s failure to testify only if the prosecutor manifestly intends the comment to be, or the comment is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant’s failure to testify. It is not sufficient that the comment might be construed as an implied or indirect allusion to the defendant’s failure to testify.

Wead v. State, 129 S.W.3d 126, 130 (Tex.Crim.App.2004). Because a defendant’s Fifth Amendment privilege against self-incrimination continues during the punishment phase of trial, this prohibition applies to both the guilt-innocence and the punishment phases. See Mitchell v. U.S., 526 U.S. 314, 325-27, 119 S.Ct. 1307, 1313-14, 143 L.Ed.2d 424 (1999); Carroll v. State, 42 S.W.3d 129, 131-32 (Tex.Crim.App.2001).

During jury deliberations at the conclusion of the guilt-innocence phase, Shea left the premises of the courthouse without telling anyone. After the jury returned the guilty verdict, the court conducted a hearing outside the jury’s presence to determine whether Shea had voluntarily absented himself from the proceedings. See Tex.Code CRim. PROC. Ann. art. 33.03 (Vernon 1989). The prosecutor elicited testimony from Shea’s girlfriend that Shea and she had come to court together that morning in her car, that Shea had a set of keys to her car, and that her car was no longer in the parking lot. The court found that Shea had voluntarily absented himself from the proceedings.

The punishment phase proceeded that afternoon with the State calling a records custodian and a fingerprint expert to prove-up Shea’s prior convictions. The next morning Shea’s counsel made an oral motion in limine asking that the prosecutor be instructed to approach the bench before making any reference to Shea’s absence from the proceedings. The court denied this request.

During punishment argument, the prosecutor made the following statement:

We don’t like everything about all of our legal system. We shouldn’t. We tug and pull against it, and that is healthy, but you respect it enough to come up and show up each day. There is not enough respect here to show up for you. There is not enough respect here to show up, to show up for you to finish your work.

This statement is not “of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant’s failure to testify.” See Wead, 129 S.W.3d at 130. Rather, it is a comment on the defendant’s failure to return for the punishment hearing. At most, it “might be construed as an implied or indirect allusion to the defendant’s failure to testify.” Id. Thus, it does not constitute an impermissible comment on Shea’s failure to testify. Accordingly, we overrule Shea’s fifth issue.

The judgment is affirmed.

      . The State characterizes the delay as only 40 months, beginning with the date of the indictment. However, the initial date for speedy trial purposes is the date of arrest or indictment, whichever occurs first. See Shaw v. State, 117 S.W.3d 883, 889 (Tex.Crim.App.2003). Thus, we measure the length of the delay from the time of Shea’s arrest, which was 2 months before the indictment was presented.

        . The fact that the prosecutor agreed with Shea’s characterization of the acts in question as “extraneous” did not transform the actual character of these acts. See Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App.1997).

      . Presiding Judge Sharon Keller of the Court of Criminal Appeals provides an excellent discussion of the interplay between Texas’s "on or about” jurisprudence and the rules regarding extraneous offenses in her concurring opinion in Campbell v. State. 149 S.W.3d 149, 156-57 (Tex.Crim.App.2004) (Keller, P.J., concurring).