Domingo Miranda v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-97-00830-CR

Domingo Miranda, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT

NO. CR97-094, HONORABLE BILL BENDER, JUDGE PRESIDING

A jury found appellant Domingo Miranda guilty of the offense of aggravated sexual

assault of a child (1) and assessed punishment at incarceration for 99 years and a fine of $10,000.

Appellant complains on appeal that he was denied the effective assistance of counsel during both

the guilt-innocence and punishment phases of trial, and that the trial court erred in failing to

instruct the jury as to the reasonable-doubt standard applicable to extraneous-offense evidence in

the punishment charge. We will affirm the conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Because appellant does not challenge the sufficiency of the evidence, only a brief

recitation of the facts is needed. Appellant's conviction stemmed from an encounter between

appellant and a child about 12 years of age. In her statement to an investigating police officer, the

child explained that she fell asleep in the back seat of appellant's car while he "drove around," and

awoke sometime later to find the car parked, the majority of her and appellant's clothing removed,

and appellant "on top of me." (2) After appellant returned the child to her home, she reported the

incident to her mother, who took her daughter to the hospital for examination.

Appellant was convicted by a jury of aggravated sexual assault of a child under the

age of fourteen and sentenced to 99 years' incarceration and a $10,000 fine. Appellant appeals

both his conviction and punishment asserting in two points of error: (1) ineffective assistance of

counsel during both the guilt-innocence and punishment phases of trial, and (2) during the

punishment phase, the trial court erred by failing to properly instruct the jury as to the State's

burden of proof, specifically that evidence of extraneous conduct must be proved "beyond a

reasonable doubt" before it can be considered.

DISCUSSION

Ineffective Assistance of Counsel

In his first point of error, appellant claims he was denied the effective assistance

of counsel during both the guilt-innocence and the punishment phases of his trial in violation of

the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas

Constitution. We will address the two phases of the trial separately.

1. Guilt-Innocence Phase

Texas has adopted the test found in Strickland v. Washington , 466 U.S. 668 (1984),

to determine claims of ineffective assistance of counsel. See Hernandez v. State , 726 S.W.2d 53,

56-57 (Tex. Crim. App. 1986). The benchmark for judging any claim of ineffectiveness is

whether counsel's conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result. See Butler v. State , 716 S.W.2d 48,

54 (Tex. Crim. App. 1986). A defendant seeking relief under Strickland must meet a two-prong

burden: first, he must show that counsel's performance was deficient; second, he must show the

performance prejudiced the defense. See id.

The first prong of the Strickland test requires us to decide whether appellant has

demonstrated that counsel's performance was unreasonable under the prevailing professional

norms and that the challenged action was not sound trial strategy. Strickland , 466 U.S. at 688 .

An appellant must show that counsel made such serious errors that he "was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687 . We presume defense

counsel provided reasonable professional assistance, and the defendant must present proof to

overcome this presumption. See Jackson v. State , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

A strong presumption exists that counsel's actions might be considered sound trial strategy. See

id. Appellate courts will not speculate about counsel's trial strategy; an appellant may, however,

rebut the presumption of effectiveness by providing a record from which the court can determine

that trial counsel's performance was not based on sound strategy. (3) See id. at 771-72 .

Appellant directs this Court to multiple omissions by trial counsel that he contends

had the cumulative effect of rendering counsel's representation ineffective. We believe these

omissions may be divided into three categories: (1) failure to conduct a proper investigation in

preparation for trial; (2) failure to make objections to the admission of evidence when appropriate;

and (3) failure to file necessary pre-trial motions.

First, appellant complains that trial counsel was not prepared to cross-examine the

State's witnesses or to present a defense because he failed to conduct an independent investigation

of the facts of the case. For instance, appellant asserts that trial counsel did not interview the

victim, her mother, the State's DNA expert, or the investigating police officers. Counsel did not

visit the locale of the assault or inspect the clothing appellant was allegedly wearing at the time

of the assault. He did not inspect the automobile where the offense occurred, although he testified

at the hearing on appellant's motion for new trial that doing so could have been helpful. Finally,

appellant contends counsel did not adequately familiarize himself with DNA scientific principles

in order to properly cross-examine the State's DNA expert witness.

Appellant cites Ex parte Lilly , 656 S.W.2d 490 (Tex. Crim. App. 1983), in urging

this Court to find his counsel's failure to conduct an independent investigation in preparation for

trial rose to the level of ineffective assistance. In Lilly , the defendant was granted habeas corpus

relief based on his counsel's ineffective assistance. See id. at 494 . In so holding, the court noted

that counsel spent only minutes preparing for trial, announced that he was not ready to proceed,

was totally unfamiliar with the most basic facts of the case, had done no independent investigation

or preparation for trial, and had not reviewed the State's file in the case. See id. at 493 ; see also

Butler, 716 S.W.2d at 54-56 (counsel failed to interview or call known fact and alibi witnesses or

investigate other exculpatory evidence); Haynes v. State , 790 S.W.2d 824, 827 (Tex.

App.--Austin 1990, no pet.) (counsel did not interview available, beneficial defense witnesses,

did not visit scene of offense, could not recall if he saw the State's file, and had not seen offense

report); Doherty v. State , 781 S.W.2d 439, 442 (Tex. App.--Houston [1st Dist.] 1989, no pet.)

(counsel failed to consult with appellant's first trial counsel, appellant's investigator, or State

witnesses; did not subpoena any witnesses; failed to investigate another possible suspect, an alibi

witness, and fact witnesses; and made prejudicial remarks about appellant's guilt within hearing

of jury).

Trial counsel has a duty to make an independent investigation of the facts of his

client's case, see Ex parte Ewing , 570 S.W.2d 941, 947 (Tex. Crim. App. 1978), and failure to

do so may deprive a defendant of the effective assistance of counsel, see Butler , 716 S.W.2d at

54-55 . Nonetheless, while we may agree with appellant that counsel could have conducted a more

thorough investigation, we do not believe the complained-of omissions rose to the level of

constitutional ineffectiveness. The record shows that counsel was very familiar with the facts of

the case and was prepared with defenses. Counsel testified that he requested a list of all potential

witnesses from appellant, especially concerning a possible alibi defense, and called as witnesses

those persons appellant identified. Counsel met with appellant and members of appellant's family

on several occasions. He sought and reviewed the State's file, including officer investigation

reports and the State's DNA evidence. (4) Counsel informed appellant that a more "specific" DNA

test could be done to combat the State's "general" DNA test, but appellant opted not to incur the

associated expense. Counsel actively participated in trial, cross-examining the State's witnesses

extensively in an attempt to challenge the State's version of events. Trial counsel called two

defense witnesses to establish an alibi. In summary, the record before us does not reveal

omissions as extensive or highly prejudicial as those found in Lilly and its progeny. We conclude

that any deficiencies in trial counsel's pre-trial investigation were not so flagrant as to render

counsel constitutionally ineffective.

Turning to appellant's complaint that counsel failed to make objections when

appropriate, appellant failed to address this alleged deficiency in the hearing on his motion for new

trial. Thus, appellant has not presented to this Court any evidence in the record to rebut the strong

presumption that counsel's actions might be considered sound trial strategy. See Jackson , 877

S.W.2d at 771 . For example, appellant complains of his counsel's failure to object to the

introduction of the DNA test results on the grounds that the undergarment containing the

perpetrator's semen sample was "never properly identified as being connected to the victim."

However, appellant fails to raise any questionable circumstances surrounding the testing and does

not establish through the record that it was unreasonable to determine, in counsel's view, that

connection to the victim had been adequately established. In fact, our review of the record shows

that objections to the admission of evidence were raised throughout the trial when appropriate.

As to any potential objections not made, we refuse to overturn appellant's conviction based on the

bare assertion that counsel's actions were not sound trial strategy.

Finally, appellant complains of his counsel's failure to file any pre-trial motions.

However, the mere failure to file appropriate pre-trial motions may not be categorically deemed

ineffective assistance of counsel. See Ryan v. State , 937 S.W.2d 93, 104 (Tex. App.--Beaumont

1996, pet. ref'd); Wills v. State , 867 S.W.2d 852, 857 (Tex. App.--Houston [14th Dist.] 1993,

pet. ref'd). Nothing in the present record reveals trial counsel's strategy with regard to his

decision not to file pre-trial motions. See Mayhue v. State , 969 S.W.2d 503, 511 (Tex.

App.--Austin 1998, no pet.). The only evidence to suggest why counsel did not file any pre-trial

motions is counsel's own testimony that there were no relevant motions to file, especially

considering the State had provided him with its "entire file." Appellant fails to raise any evidence

to combat the presumption that counsel provided reasonable professional assistance when he

determined that pre-trial motions would not be applicable or helpful to the defense.

In summary, appellant has not overcome the strong presumption that trial counsel's

strategy was reasonable from counsel's perspective. See Mayhue , 969 S.W.2d at 511 . The

adequacy of counsel's assistance is based upon the totality of the representation, not by isolated

acts or omissions. Ex parte Welborn , 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Passmore

v. State , 617 S.W.2d 682, 686 (Tex. Crim. App. 1981). While it appears that counsel could have

engaged in a more aggressive course of action, appellant is not entitled to errorless counsel. See

James v. State , 763 S.W.2d 776, 778 (Tex. Crim. App. 1989). This Court does not need to weigh

the potential success of the many trial strategies available to trial counsel. See Ingham v. State ,

679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Because we find no basis for concluding that

counsel did not exercise reasonable professional judgment, appellant has not established the first

prong of Strickland required to sustain a claim of ineffectiveness.

Even assuming appellant sufficiently established the first prong of Strickland , he

has wholly failed to allege how he was prejudiced by his counsel's actions and omissions.

Appellant has not directed this Court to any evidence that the outcome of the guilt-innocence phase

of his trial would have been different had his counsel not made the alleged errors. For instance,

appellant fails to identify how the filing of any pre-trial motions would have been beneficial. See

Ryan , 937 S.W.2d at 104 ; Huynh v. State , 833 S.W.2d 636, 638 (Tex. App.--Houston [14th

Dist.] 1992, no pet.). Appellant speculates that had his counsel conducted a more thorough

investigation, he might have ascertained something to "befuddle" the prosecution's case. Other

than the mere speculation that counsel would have been more prepared during cross-examination,

appellant does not establish that had counsel conducted a more aggressive investigation, facts

would have been revealed that would have provided a defense. See Huynh , 833 S.W.2d at 638 .

This is also true of appellant's assertion that his counsel was unfamiliar with DNA testing;

appellant simply speculates that more detailed knowledge would have been helpful.

The omissions appellant complains of do not undermine our confidence in the

outcome of this trial. On balance, the record reveals extensive evidence against appellant and no

indication that a more aggressive trial strategy would have resulted in a successful defense.

Because appellant has not shown his counsel's performance had the effect of depriving him of a

fair trial, he has not met his burden under Strickland .

We hold that appellant was not denied the effective assistance of counsel during the

guilt-innocence phase of his trial.

2. Punishment Phase

The proper standard for determination of effectiveness of counsel at the punishment

phase of a non-capital trial has previously been found in Ex parte Duffy , 607 S.W.2d 507 (Tex.

Crim. App. 1980). The Duffy standard asks "first, whether counsel was reasonably likely to

render effective assistance, and second, whether counsel reasonably rendered effective assistance."

See Craig v. State , 825 S.W.2d 128, 130 (Tex. Crim. App. 1992). However, the court of

criminal appeals very recently reexamined the proper standard to be applied to claims of

ineffective assistance at punishment phase in Hernandez v. State , No. 506-97, SLIP OP. AT 1-2

(Tex. Crim. App. April 14, 1999). The court expressly overruled the application of the Duffy

standard to review these complaints and determined that the proper test to be applied is that

enumerated in Strickland v. Washington , 466 U.S. 668 (1984). See id. at 3-4.

Accordingly, we review appellant's contention in the instant appeal that he was

denied the effective assistance of counsel during the punishment phase of his non-capital trial

pursuant to the two-prong Strickland test: first, whether appellant has shown his counsel's

performance was deficient and, second, whether the performance prejudiced the defense. See

Butler , 716 S.W.2d at 54 (interpreting the Strickland test).

Appellant urges this Court to reverse the assessed punishment against him based

on his assertion that counsel was ineffective by failing to request a motion for continuance or

mistrial in response to the State's late notice of a "surprise" witness. The record shows that

sometime during the three-day trial, the prosecution gave notice, for the first time, of its intent to

offer evidence during the punishment phase of extraneous bad acts in the form of testimony from

a previously undisclosed witness. Pursuant to the notice, the State presented Beatrice Cruz, the

sister of the victim, as its first witness during the punishment phase. Cruz testified that appellant

had on several occasions directed sexual advances towards her when she was about 12 years old.

It is undisputed that, on learning of the "surprise witness," appellant's counsel

requested neither a continuance nor a mistrial. Appellant argues that this amounts to ineffective

assistance in that his counsel did not even attempt to assess the new evidence. However, appellant

provides this Court with nothing from the record showing how this affected counsel's rendition

of effective assistance. During the hearing on appellant's motion for new trial, trial counsel was

asked if he requested a continuance or mistrial, and admitted that he did not. But no further

inquiry was made, so we are unable to determine if counsel had a reason based on sound trial

strategy for his actions. Whatever counsel's reasons, if any, for failing to request a continuance

or mistrial, the fact that other counsel might have so requested does not amount to ineffective

representation. See Ingham , 679 S.W.2d at 509 (fact that other counsel might have tried case

differently does not show ineffective assistance).

It is unclear from his brief to this Court whether appellant also raises the

ineffectiveness issue based on counsel's failure to request an instruction in the punishment charge

on the burden of proof required for consideration of extraneous offenses. Assuming appellant does

complain of his counsel's failure to object to this charge deficiency, we hold that this oversight

did not render counsel ineffective. Failure to request an instruction on the burden of proof

required for consideration of extraneous offenses during the punishment phase of trial is not

necessarily ineffective assistance of counsel. See Yates v. State , 917 S.W.2d 915, 924 (Tex.

App.--Corpus Christi 1996, pet. ref'd); Blevins v. State , 884 S.W.2d 219, 230 (Tex.

App.--Beaumont 1994, no pet.); Wilson v. State , 730 S.W.2d 438, 444 (Tex. App.--Fort Worth

1987, pet. ref'd); Abbott v. State , 726 S.W.2d 644, 649 (Tex. App.--Amarillo 1987, pet. ref'd).

Because appellant has failed to show that his counsel's performance was deficient

under the first prong of the Strickland test, we need not address whether any alleged deficient

performance prejudiced the defense under Strickland's second prong.

We have carefully reviewed the record before us and hold that trial counsel's

efforts--while not free from error--were sufficient to constitute reasonably effective assistance in

both phases of the trial. We overrule appellant's first point of error.

Failure to Instruct the Jury

In his second point of error, appellant asks this Court to reverse the assessed

punishment based on the trial court's failure to include an instruction in the punishment charge

directing the jury not to consider extraneous offenses unless it first found beyond a reasonable

doubt that appellant committed those offenses. (5) The parties agree that the punishment charge

contained no instruction in any form whatsoever on the State's burden of proof. Thus, appellant

argues, the jury was invited to consider Cruz's testimony of extraneous bad acts whether or not

the jurors believed it to be true beyond a reasonable doubt.

The court of criminal appeals has determined that there is "an absolute systemic

requirement that an instruction on reasonable doubt be submitted to the jury in all cases where the

burden of proof requires the jury to find guilt beyond a reasonable doubt." Reyes v. State , 938

S.W.2d 718, 721 (Tex. Crim. App. 1996) (interpreting Geesa v. State , 820 S.W.2d 154 (Tex.

Crim. App. 1991)). Both Reyes and Geesa , however, involved the guilt-innocence phase of trial.

In Mitchell v. State , the court expanded the Geesa requirement, holding that a reasonable-doubt

instruction also must be included in the jury charge when requested at the punishment phase of

trial. Mitchell v. State , 931 S.W.2d 950, 954 (Tex. Crim. App. 1996). In the case at bar,

appellant never requested this instruction nor objected to its omission in the punishment charge;

nevertheless, he contends the trial court had a duty to give this instruction sua sponte , without

objection or request.

This Court has previously held that, absent a defendant's request, there is no error

when a trial court fails to give an instruction requiring the jury to find beyond a reasonable doubt

that the defendant committed the extraneous offenses before considering evidence of those

offenses. See Smith v. State , 899 S.W.2d 31, 35 (Tex. App.--Austin 1995, pet. ref'd) (holding

no error where instruction omitted at punishment phase). Nonetheless, in Smith we presumed

error and followed the test set out in Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App.

1985) (op. on reh'g), to determine whether the absence of the instruction was so egregiously

harmful that the appellant had been denied a fair and impartial trial. See Smith , 899 S.W.2d at

35 ; cf. Cormier v. State , 955 S.W.2d 161, 163 (Tex. App.--Austin 1997, no pet.) ( Almanza

review applied where punishment charge included special instruction on reasonable doubt burden

for extraneous offense evidence but failed to define "reasonable doubt").

The Fourth Court of Appeals recently held that a trial court commits reversible

error if it fails to instruct the jury, at either the guilt-innocence or punishment phase, not to

consider evidence of extraneous offenses unless they are convinced of those acts beyond a

reasonable doubt, whether or not counsel requests such an instruction . See Huizar v. State , 966

S.W.2d 702 (Tex. App.--San Antonio 1998, pet. granted). We will follow our decision in Smith

and merely presume that the failure to give this instruction to the jury during the punishment phase

was error.

We must then decide whether sufficient harm resulted from the error in the charge

to require reversal. Normally, errors in the charge are reviewed using the standard set out in

Almanza , 686 S.W.2d at 171 . Appellant, however, argues that this error involves a constitutional

right, which requires a Rule 44.2(a) harmless-error analysis, and this Court therefore must reverse

unless we determine beyond a reasonable doubt that the error did not contribute to the punishment.

See Tex. R. App. P. 44.2(a). He cites us to Huizar , where the court applied the analysis set out

in Rule 44.2(a). See Huizar , 966 S.W.2d at 709 . In Huizar , the court explained that Reyes made

it clear the Almanza standard does not apply because the reasonable-doubt instruction is both a

statutory and constitutional right. See id. (citing Reyes , 938 S.W.2d at 721 ) (interpreting Geesa,

820 S.W.2d at 162 ). As noted previously in this opinion, however, Reyes and Geesa involved the

reasonable-doubt instruction necessary to convict a defendant of the primary alleged offense, not

an instruction telling the jury under what circumstances evidence of an extraneous offense could

be considered for its limited purpose. See Reyes , 938 S.W.2d at 721 ; Geesa , 820 S.W.2d at 162 .

Since appellant complains about the reasonable-doubt instruction concerning evidence of

extraneous offenses, and not the instruction on the burden of proof necessary to convict him of the

charged offenses, we believe Reyes and Geesa are inapplicable.

Our conclusion that the Almanza standard applies is supported by previous decisions

in similar cases. As Justice Duncan observed in her dissenting opinion in Huizar , no court had

ever held that a court's failure to instruct a jury on the burden of proof required before considering

extraneous offense was a constitutional error subject to Rule 44.2(a) analysis. Huizar , 966

S.W.2d at 710 (Duncan, J., dissenting). Every case we have found addressing such an error has

applied the standard set out in Almanza . See Mitchell , 931 S.W.2d at 954 (holding trial court

erred in refusing appellant's request for instruction on burden of proof for extraneous-offense

evidence admitted during punishment phase and remanding to court of appeals to conduct Almanza

harm analysis); Cormier , 955 S.W.2d at 164 (applying Almanza "egregious harm" standard to

failure to define "reasonable doubt" in instruction on burden of proof for extraneous offense

evidence admitted during punishment phase); Splawn v. State , 949 S.W.2d 867, 874 (Tex.

App.--Dallas 1997, no pet.) (applying Almanza "egregious harm" standard to failure to define

reasonable-doubt standard for considering extraneous offenses); Yates , 917 S.W.2d at 924

(assuming, without deciding, that failure to give instruction was error and applying Almanza

"egregious harm" standard); Smith , 899 S.W.2d at 35 (same).

Our conclusion is further supported by the fact that, while the reasonable-doubt

instruction implicates both state and federal constitutional rights in the context of conviction , (6) this

is not true in the context of punishment , especially in regard to extraneous offenses. The State's

burden to prove extraneous offenses beyond a reasonable doubt is purely a creature of statute

derived from article 37.07 of the Texas Code of Criminal Procedure. We decline to adopt the

rationale in Huizar . We hold instead that the proper harm analysis to apply here, assuming this

was error, is the Almanza standard.

Under Almanza , an appellant who complains of an error in the charge for the first

time on appeal must demonstrate that the error was so egregiously harmful that he was denied a

fair and impartial trial. Almanza , 686 S.W.2d at 171 . This requires a showing of actual harm,

not just theoretical harm. Id. at 174 .

We are convinced that there was no egregious harm at the punishment phase in the

instant case. The entire trial, including both guilt-innocence and punishment phases, lasted

approximately three days. The jury began deliberating as to appellant's guilt during the mid-afternoon of the second day. In the charge to the jury on guilt-innocence, the court defined

"reasonable doubt" and included a specific limitation and instruction that the jury could not

consider evidence of any extraneous bad acts unless it first found beyond a reasonable doubt that

the defendant committed such acts. After returning a guilty verdict, the jury began punishment

deliberations late in the morning of the third day of trial, less than 24 hours after receiving the

court's guilt-innocence charge. There is no reason to believe the jury did not remember the charge

given in the guilt-innocence phase, and no evidence that the jury did not follow the guilt-innocence

instructions when it later considered punishment. See Cormier , 955 S.W.2d at 164 (no evidence

that defendant was harmed by absence of "reasonable-doubt" definition in punishment charge

where definition present in guilt-innocence charge and punishment deliberations began less than

24 hours after guilt-innocence charge given). Appellant has failed to point to evidence on the

record that the court's failure to include the reasonable-doubt instruction in the punishment charge

affected the jury's deliberations regarding extraneous offenses.

We hold that even if the court erred in omitting a reasonable-doubt instruction in

the punishment phase concerning the State's burden of proof of extraneous-offense evidence, the

appellant has not met his burden of showing that the error was so egregiously harmful as to deny

him a fair and impartial trial. See Almanza , 686 S.W.2d at 171 . We overrule point of error two.

CONCLUSION

Having overruled appellant's points of error, we affirm the judgment of conviction.

J. Woodfin Jones, Justice

Before Justices Jones, Kidd and B. A. Smith

Affirmed

Filed: April 29, 1999

Publish

1. See Tex. Penal Code Ann. §§ 22.021 (a)(1)(B), (2)(B) (West Supp. 1999).

2. Appellant was a long-time friend of the victim's mother, and on occasion would take the

child out "driving around" or to get something to eat.

3. The record in this appeal contains appellant's motion for new trial raising the ineffectiveness

issue, and a transcript of the hearing on that motion, from which we may discern whether he has

rebutted the presumption of effectiveness .

4. The DNA evidence consisted of a lab report comparing semen found on the victim's

undergarments to a sample of appellant's blood. The State's DNA expert testified he could not

exclude appellant as a donor of the semen. He further testified that less than one percent of the

Hispanic population could have been a donor.

5.

The State is entitled to introduce evidence of a defendant's extraneous bad acts during the

punishment phase of trial. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 1999).

Before such evidence may be considered by the trier of fact, however, the State has the burden to

show beyond a reasonable doubt that the defendant committed the act. See id.

6. See In re Winship , 397 U.S. 358, 363-64 (1970) (reasonable-doubt standard has

constitutional stature); Reyes , 938 S.W.2d at 721 n.7 (stating that the rules announced in Geesa

implement the constitutional requirement that a criminal conviction can only stand except upon

proof beyond a reasonable doubt).

.2d at 171. This requires a showing of actual harm,

not just theoretical harm. Id. at 174 .

We are convinced that there was no egregious harm at the punishment phase in the

instant case. The entire trial, including both guilt-innocence and punishment phases, lasted

approximately three days. The jury began deliberating as to appellant's guilt during the mid-afternoon of the second day. In the charge to the jury on guilt-innocence, the court defined

"reasonable doubt" and included a specific limitation and instruction that the jury could not

consider evidence of any extraneous bad acts unless it first found beyond a reasonable doubt that

the defendant committed such acts. After returning a guilty verdict, the jury began punishment

deliberations late in the morning of the third day of trial, less than 24 hours after receiving the

court's guilt-innocence charge. There is no reason to believe the jury did not remember the charge

given in the guilt-innocence phase, and no evidence that the jury did not follow the guilt-innocence

instructions when it later considered punishment. See Cormier , 955 S.W.2d at 164 (no evidence

that defendant was harmed by absence of "reasonable-doubt" definition in punishment charge

where definition present in guilt-innocence charge and punishment deliberations began less than

24 hours after guilt-innocence charge given). Appellant has failed to point to evidence on the

record that the court's failure to include the reasonable-doubt instruction in the punishment charge

affected the jury's deliberations regarding extraneous offenses.

We hold that even if the court erred in omitting a reasonable-doubt instruction in

the punishment phase concerning the State's burden of proof of extraneous-offense evidence, the

appellant has not met his burden of showing that the error was so egregiously harmful as to deny

him a fair and impartial trial. See Almanza , 686 S.W.2d at 171 . We overrule point of error two.

CONCLUSION

Having overruled appellant's points of error, we affirm the judgment of conviction.

J. Woodfin Jones, Justice

Before Justices Jones, Kidd and B. A. Smith

Affirmed

Filed: April 29, 1999

Publish

1. See Tex. Penal Code Ann. §§ 22.021 (a)(1)(B), (2)(B) (West Supp. 1999).

2. Appellant was a long-time friend of the victim's mother, and on occasion would take the

child out "driving around" or to get something to eat.

3. The record in this appeal contains appellant's motion for new trial raising the ineffectiveness

issue, and a transcript of the hearing on that motion, from which we may discern whether he has

rebutted the presumption of effectiveness .

4. The DNA evidence consisted of a lab report comparing semen found on the victim's

undergarments to a sample of appellant's blood. The State's DNA expert testified he could not

exclude appellant as a donor of the semen. He further testified that less than one percent of the

Hispanic population could have been a donor.

5.

The State is entitled to introduce evidence of a defendant's extraneous bad acts during the

punishment phase of trial. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 1999).

Before such evidence may be considered by the trier of fact, however, the State has the burden to

show beyond a reasonable doubt that the defendant committed the act. See id.

6. S