## In The Court of Appeals Seventh District of Texas at Amarillo

No. 07
- 17
- 00291
- C R
JUSTIN RUSSELL MURDO CH , APPELLANT

V. STATE OF TEXAS , APPELLEE On Appeal from the 54th District Court McLennan County , Texas Trial Court No. 2015
- 1351
- C2 , Honorable Matt Johnson , Presiding



### December 2 8 , 2017 MEMORANDUM OPINION Before QUINN , C.J. , and CAMPBELL and PIRTLE , JJ. Justin Russell Murdoch (appellant) appeals his two convictions on two counts of indecency with a c hild by contact

. Three issues lie before us , which issues will be addressed in turn. We modify in part and affirm. 1

1 Because this appeal was transferred from the Tenth Court of Appeals , we decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court ’ s decision would b e inconsistent with the precedent of the transferor court. T EX

. R. A PP

. P. 41.3.2

Issue One

– No Fine Under his first issue , appellant contends that the trial court erred in stating within the j udgment on count two that appellant was assessed a fine of $10 , 000. The State agrees. The jury did not levy a fine as part of its punishment. Thus , the issue is sustained , and the judgment on count two is modified to redact mention of a $10 , 000 fine. Issue Two

– Lesser Included Offense Appellant next contends that the trial court erred in failing to submit an instruction on the lesser included offense of attempt ed indecency with a child by contact. As acknowledged in his brief , the instruction was not requested by appellant. This is of import since the trial court has no duty to submit one sua sponte

. Tolbert v. State , 306 S.W.3d 776 , 781 (Tex. Crim. App. 2010 ) ; Bright v. State , No. 07

- 15
- 00118
- CR , 2016 Tex. App. L EXIS 6885 , at *21 (Tex. App.

— Amarillo June 29 , 2016 , pet. ref ’ d ) (mem. op. , not designated for publication ) . Thus , the issue was not preserved for review. Goggins v. State , __S.W.3d __ ,
__ , 2017 Tex. App. L EXIS 111 23 , at *6

- 7 (Tex. App.

— Houston [14 th Dist.] Nov

. 30 , 2017 , no pet. h. ) ; accord , Darnes v. State , 118 S.W.3d 916 , 921 (Tex. App

— A marillo 2003 , pet. ref ’ d) (holding that “ the failure to ask the trial court to charge the jury on a lesser

- included offense does not preserve the issue for review ” ) ; see also Tolbert v. State , 306 S.W.3d at 781

- 82 (stating that because the appellant did not request the instruction , there was “ no jury

- charge ‘ error ’ to which Almanza ’ s egregious harm analysis would apply ” ). Issue Th ree – Evidence of Extraneous Offense In his final issue , appellant contends that the trial court erred in admitting e vidence of an extraneous bad act when the State failed to provide reasonable notice of its intent3

to do so under Texas Rule of Evidence 40 4(b)(2). See T EX

. R. E VID

. 404(b)(2) (West 2016 ) (stating that “ [o]n timely request by a defendant in a criminal case , the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such [extraneous offense] evidence

. . . in its case

- in

- chief ” ). We overrule the issue. The State sough t to admit evidence of appellant touching the buttocks of another child in rebuttal to the defensive theory of fabrication. The trial court eventually granted leave to do so o n that basis and instructed the jury that it “ may only consider the same in rebutting the defensive theory of fabrication , if any , in connection with the offense , if any , alleged against him in the indictment in this case and for no other purpose. ” Because the

e vidence was offered in rebuttal to a defensive theory raised by appellant , the prior notice requirement of Rule 404(b)(2) did not apply

. See J aubert v. State , 7 4 S.W.3d 1 , 4 (Tex. Crim. App. 2002) (stating that “ when the State presents extraneous offense evidence in rebuttal to mitigation evidence offered by the defendant , advance notice of intent to offer the extraneous offense evidence is n ot possible: ‘ In such a situation , the defendant , rather than the State , determines whether a contested issue will be raised , and his determination will not be made known until he presents his case. It would be practically impossible for the State to give notice until that time

. ’ ” ) ; Chung v. State , No. 10

- 16
- 00242
- CR , 2017 Tex. App. L EXIS 10006 , at *4

- 5 (Tex. App.

— W aco Oct

. 25 , 2017 , no pet. ) (mem. op. , not designated for publication) (citing Jaubert and reiterating that the notice provision did not apply to evidence of extraneous offenses offered in rebuttal to a defensive theory)

. Furthermore , a ppellant does not atte mpt to explain why the holding in Jaubert is inapplicable here.4

T o the extent that appellant invokes the umbrella of due process as basis for contending that he was entitled to prior notice , that argument went unmentioned at trial. Thus , it was not pre served. See Chapman v. State , No. 10

- 14
- 00350
- CR , 2016 Tex. App. L EXIS 7432 , at *6 (Tex. App.

— W aco July 13 , 2016 , no pet. ) (mem. op. , not designated for publication) (stating that t he complaint on appeal must correspond with objections and arguments made at trial , and when a trial objection does not comport with the issue raised on appeal , the issue i s not preserved for review). Nor does he attempt to now explain how and why due process would mandate the provision of prior notice when , as said in Jaubert , it would be rather “ impossible for the State to give notice until ” it became aware of the need to defend against a par ticular defensive theory raised by the accused at trial

. We redact from the judgment on count two the reference to appellant being

a ssessed a fine of $10 , 000 and affirm that judgment as modified. We also affirm the judgment on count one.

Brian Quinn Chief Justice Do not publish.