COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00018-CR

LEWIS EDWARD CAMPBELL APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

TRIAL COURT NO. 52,792-A

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MEMORANDUM OPINION1

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Appellant Lewis Edward Campbell appeals his convictions for three counts 

of aggravated sexual assault of a child, one count of attempted aggravated 

sexual assault of a child, and one count of indecency with a child by sexual 

contact. See Tex. Penal Code Ann. §§ 15.01, 21.11 (West 2011), § 22.021 

(West Supp. 2015). In a single issue, divided into several subparts, Campbell 

 

1See Tex. R. App. P. 47.4.
2

argues that the trial court erred by instructing the jury that it could consider

evidence of extraneous offenses for character-conformity purposes. We will 

affirm.

In February 2012, nine-year-old S.C. told a counselor at her elementary 

school in Wichita Falls that her father, Campbell, had sexually abused her. The 

counselor reported S.C.’s graphic disclosures to CPS, and at a forensic interview

that followed, S.C. revealed the “very nasty things” that Campbell had done to 

her multiple times. Authorities initiated an investigation into S.C.’s claims against

Campbell, whose work required him to be away from home for lengthy periods of 

time, but no warrant issued for his arrest. CPS allowed S.C. to remain in the 

care of her stepmother, having instructed her that Campbell was not allowed in 

the house, but he came over anyway, according to S.C.

CPS received a number of other referrals regarding S.C. after her initial 

disclosures. In February 2012, S.C. reported that Campbell had entered her 

room one night but that he had left when she screamed, and in May 2012, S.C. 

came to school with a black eye and said that Campbell had hit her.

In June or July 2012, Campbell, S.C., and S.C.’s stepmother and younger 

sister moved to Tennessee to “get[] away from CPS.” However, soon thereafter, 

in August 2012, CPS in Tennessee received a referral regarding S.C. S.C. 

disclosed that Campbell had sexually abused her, and CPS removed S.C. and 

her sister from Campbell’s home. A sexual assault exam performed on S.C. 
3

revealed several things that were “cause for concern and suspicio[n] for abuse.” 

When the CPS investigator spoke on the phone with Campbell, he neither voiced 

any concern for S.C. nor asked any questions about her well-being. Instead, 

Campbell explained that he had merely removed S.C.’s clothes and treated her 

like a baby because she had bad hygiene.

Authorities in Wichita Falls arrested Campbell in October 2012. A grand 

jury later indicted him for five offenses that allegedly occurred in Wichita County 

in January and February 2012.

2 At trial, several witnesses testified that S.C. had 

a black eye in May 2012, and after a preliminary hearing outside the presence of 

the jury, a CPS worker from Tennessee testified about the disclosures that S.C. 

had made involving Campbell following the referral to CPS in Tennessee. 

Paragraph 13 of the court’s charge at the guilt phase instructed the jury as 

follows:

If you find that there is evidence in this case of the defendant 

having committed acts other than those for which he is now on trial, 

and you find that evidence to be true beyond a reasonable doubt, 

 

2

The indictment alleged that Campbell had committed aggravated sexual

assault of a child by intentionally or knowingly causing (1) S.C.’s mouth to come 

into contact with Campbell’s sexual organ, (2) S.C.’s sexual organ to contact 

Campbell’s mouth, and (3) the penetration of S.C.’s sexual organ with 

Campbell’s finger. The indictment also alleged that Campbell had committed 

attempted aggravated sexual assault of a child by “making [S.C.] bend over 

and/or trying to insert [his] sexual organ into the anus of [S.C.] and/or putting [his]

sexual organ against the butt of” S.C. Lastly, the indictment alleged that 

Campbell had committed indecency with a child by sexual contact by intentionally 

or knowingly, and with the intent to arouse or gratify his sexual desire, causing 

S.C. to touch his genitals.
4

then you can consider that evidence for the purposes of showing the 

state of mind of the defendant and the child, and/or the previous and 

subsequent relationship between the defendant and the child, and/or 

the character of the defendant and acts performed in conformity with 

the character of the defendant, and/or intent, and/or opportunity, 

and/or lack of mistake, but for no other purposes. [Emphasis 

added.]

The jury convicted Campbell on each count and assessed his punishment at life 

imprisonment and a $10,000 fine on each of the aggravated assault convictions 

and twenty years’ confinement and a $10,000 fine for each of the attempted 

aggravated sexual assault and indecency convictions.

In his only issue, Campbell argues that the trial court erred by instructing 

the jury in paragraph 13 that it could consider evidence of extraneous offenses to 

show his character and that he acted in conformity therewith. Campbell 

acknowledges that section 2 of code of criminal procedure article 38.37 allows 

evidence of certain extraneous offenses to show “the character of the defendant 

and acts performed in conformity with the character of the defendant,” but he 

contends that “the conditions required for admissibility [of such extraneous 

offenses or acts] as set forth in Article 38.37 §§ 2, 2-a, and 3 were not met.”

Assuming without deciding that these alleged errors are properly analyzed as 

jury charge errors subject to an Almanza analysis, rather than trial errors initially 
5

subject to error-preservation requirements, Campbell’s arguments are 

unpersuasive.3

“[A]ll alleged jury-charge error must be considered on appellate review 

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 

649 (Tex. Crim. App. 2012); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. 

Crim. App. 1984) (op. on reh’g). In our review of a jury charge, we first determine 

whether error occurred; if error did not occur, our analysis ends. Kirsch, 357 

S.W.3d at 649. If error occurred, whether it was preserved determines the 

degree of harm required for reversal. Id.

Section 2(b) of article 38.37 provides as follows:

(b) Notwithstanding Rules 404 and 405, Texas Rules of 

Evidence, and subject to Section 2-a, evidence that the defendant 

has committed a separate offense described by Subsection (a)(1) or 

(2) may be admitted in the trial of an alleged offense described by 

Subsection (a)(1) or (2) for any bearing the evidence has on relevant 

matters, including the character of the defendant and acts performed 

in conformity with the character of the defendant.

Tex. Code. Crim. Proc. Ann. art. 38.37, § 2(b) (West Supp. 2015). 

Subsection (a)(1) of section 2 includes the offenses of aggravated sexual assault 

 

3

Insofar as Campbell’s arguments about notice and a preliminary hearing 

are not properly analyzed under Almanza, we note that Campbell did not assert 

any objection at trial implicating article 38.37, section 3’s notice requirement or 

article 38.37, section 2-a’s preliminary hearing procedure. Therefore, in that 

case, neither argument was preserved for appellate review. See Tex. R. App. P. 

33.1(a).
6

of a child and indecency with a child, the same offenses for which Campbell was

indicted.

4

 Id. art. 38.37, § 2(a)(1)(C), (E).

Campbell argues that the trial court nevertheless erred by including the 

character-conformity language in paragraph 13 of the charge because the State 

failed to give notice of its intent to introduce extraneous offense evidence “for the 

purpose of proving Appellant’s character.” In other words, Campbell does not 

complain that the State’s notice failed to identify any particular extraneous 

offense or act; he only argues that the notice failed to explicitly state that any 

extraneous offense or act would be introduced for character-conformity 

purposes. The record demonstrates that the State noticed Campbell that it 

intended to introduce extraneous offense evidence or acts for the reasons 

articulated in rules of evidence 404(b) and 609 and code of criminal procedure 

article 38.37, section 1 but not section 2—the section that addresses characterconformity evidence. However, section 3 of article 38.37 requires the State to 

“give the defendant notice of the state’s intent to introduce in the case in chief 

evidence described by Section . . . 2 not later than the 30th day before the date 

of the defendant’s trial.” Id. art. 38.37, § 3 (emphasis added). Thus, the statute 

requires the State to give the defendant notice of the evidence that it intends to 

use, not the specific purpose for which the State intends to offer the evidence. 

 

4Campbell was also indicted for attempted aggravated sexual assault of a 

child, and subsection (a)(2) of section 2 covers an attempt to commit an offense 

described by subsection (a)(1). Tex. Code Crim. Proc. Ann. art. 38.37, § 2(a)(2).
7

Campbell’s argument is contrary to the plain language of section 3, he directs us 

to no authority to support his reading of the statute, and the record does not

indicate that Campbell lacked notice of, or was otherwise surprised by, any

particular extraneous offense or act introduced by the State at trial. See 

Villarreal v. State, 470 S.W.3d 168, 175–76 (Tex. App.—Austin 2015, no pet.) 

(“[Appellant] has referred to no authority and we are not aware of any authority 

requiring the State to specifically list in its notice pertaining to evidence of 

extraneous offenses the statutes or rules under which that evidence will be 

introduced.”); cf. Cole v. State, 987 S.W.2d 893, 897 (Tex. App.—Fort Worth 

1998, pet. ref’d) (analyzing prior version of article 38.37, section 3 and reasoning 

that “[t]he purpose of the notice requirement is to prevent surprise to the 

defendant and apprise him of the offenses the State plans to introduce at trial”).

Campbell next argues that the trial court erred by including the characterconformity language in paragraph 13 of the charge because no article 38.37, 

section 2-a preliminary hearing occurred before either S.C. or the sexual assault 

nurse examiner from Tennessee testified. Section 2-a provides as follows:

Before evidence described by Section 2 may be introduced, 

the trial judge must:

(1) determine that the evidence likely to be admitted at trial will be 

adequate to support a finding by the jury that the defendant 

committed the separate offense beyond a reasonable doubt; and

(2) conduct a hearing out of the presence of the jury for that 

purpose.
8

Tex. Code Crim. Proc. Ann. art. 38.37, § 2-a. The trial court did not perform a 

section 2-a preliminary determination before the testimony of either S.C. or the 

sexual assault nurse from Tennessee, but it did conduct the hearing before the 

testimony of Kristen Bohannon, the CPS worker from Tennessee. Bohannon 

was the outcry witness who testified in detail about the disclosures that S.C. 

made about Campbell during her forensic interview in Tennessee. Before 

Bohannon testified, and consistent with section 2-a, the trial court conducted a 

hearing outside the presence of the jury and explicitly found that “the evidence 

that will be admitted will be adequate to support a finding by the jury that the 

Defendant committed the offense beyond a reasonable doubt.” The Tennessee 

extraneous offenses or acts of which Bohannon testified were the same 

Tennessee extraneous offenses or acts of which S.C. testified.5 We do not read 

article 38.37, section 2-a as obligating the trial court to inefficiently conduct 

duplicative preliminary hearings involving the same extraneous offenses or acts. 

Accordingly, the trial court complied with article 38.37, section 2-a’s preliminary 

hearing requirement as it pertains to the extraneous offenses or acts allegedly 

committed by Campbell in Tennessee.

Lastly, Campbell argues that the trial court erred by including the 

character-conformity language in paragraph 13 of the charge because the 

 

5

The sexual assault nurse concluded that there was “cause for concern 

and suspicio[n] for abuse” but did not testify about any specific extraneous 

offenses or acts.
9

extraneous offense or act that Campbell gave S.C. a black eye is not one of the 

“separate offense[s]” described by article 38.37, section 2 that may be admitted 

during trial for character-conformity purposes. Campbell is correct that simple 

assault is not identified in section 2; however, under section 1, in the prosecution 

of a defendant under penal code “Chapter 21 (Sexual Offenses)” or “Chapter 22 

(Assaultive Offenses),” and if the offense is committed against a child under 

seventeen years of age, extraneous offenses or acts are admissible to show “the 

state of mind of the defendant and the child” and “the previous and subsequent 

relationship between the defendant and the child.” Id. art. 38.37, § 1(a)(1), (b). 

Here, the indictment alleged that Campbell had committed offenses against 

S.C.—a child under fourteen years of age—under either penal code chapter 21 

or chapter 22, and in addition to character conformity, paragraph 13 of the 

charge disjunctively instructed the jury that it could consider extraneous offenses

or acts “for the purposes of showing the state of mind of the defendant and the 

child, and/or the previous and subsequent relationship between the defendant 

and the child.” Therefore, the jury could have properly considered the evidence 

that Campbell gave S.C. a black eye for the reasons articulated in article 38.37, 

section 1 instead of for purposes of character conformity. See Riddle v. State, 

888 S.W.2d 1, 8 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1068 (1995) (“A 

jury charge which tracks the language of a particular statute is a proper charge 

on the statutory issue.”).
10

We hold that the trial court did not err by instructing the jury that it could 

consider evidence of extraneous offenses or acts for character-conformity 

purposes. See Kirsch, 357 S.W.3d at 649. We overrule Campbell’s only issue 

and affirm the trial court’s judgments.

/s/ Bill Meier

BILL MEIER

JUSTICE

PANEL: GARDNER, MEIER, and SUDDERTH, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: December 10, 2015