In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-24-00009-CR

___________________________

On Appeal from the 90th District Court

Young County, Texas

Trial Court No. CR11982

Before Sudderth, C.J.; Wallach and Walker, JJ.

Memorandum Opinion by Justice Wallach

ANDREW JAMES GARIBAY, Appellant

V. 

THE STATE OF TEXAS
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MEMORANDUM OPINION

A jury found Appellant Andrew James Garibay guilty of continuous sexual 

abuse of a child under fourteen years of age and assessed his punishment at 70 years’ 

imprisonment. See Tex. Penal Code Ann. § 21.02(b). The trial court sentenced Garibay 

in accordance with the verdict.

On appeal, in one issue, Garibay contends that the trial court abused its 

discretion during the punishment trial when it admitted evidence of extraneous 

offenses or bad acts. Because Garibay did not object to the complained-of testimony, 

he has not preserved error. See Tex. R. App. P. 33.1. Assuming he had preserved 

error, his complaint has no merit. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1).

We overrule his issue and affirm the trial court’s judgment.

I. BACKGROUND

• Offense Trial

During the offense trial (sometimes imprecisely referred to as the guilt–

innocence trial), outside the jury’s presence, the State proffered the testimony of two 

witnesses who asserted that Garibay had sexually assaulted them when they were

adults. See id. art. 38.37. Objecting to the admission of their testimony, Garibay argued

that the probative value of the proposed testimony was substantially outweighed by 

the danger of unfair prejudice. See Tex. R. Evid. 403. After hearing the two witnesses’ 

testimony and the parties’ arguments, the trial court took the matter under 
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advisement. Ultimately, the proffered testimony never came in during the offense

trial.

• Punishment Trial

During the punishment trial, both witnesses testified about how Garibay had 

sexually assaulted them as adults. Garibay did not object to their testimony during the 

punishment trial.

II. DISCUSSION

On appeal, Garibay asserts that his Rule 403 objection during the offense trial 

preserved his complaint about evidence admitted during the punishment trial. See id.

Garibay has not cited any authority for the proposition that an objection raised during 

the offense trial can be transposed into the trial on punishment.

• Not Preserved

The basis for admitting an extraneous offense during the offense trial, see Tex. 

Code Crim. Proc. Ann. art. 38.37, is different from the basis for admitting an 

extraneous offense during the punishment trial, see id. art. 37.07, § 3(a)(1). During the 

punishment trial, Garibay never argued that the probative value of the extraneous 

offenses or bad acts was substantially outweighed by the danger of unfair prejudice. 

The purpose of an objection is to give opposing counsel an opportunity to respond 

and to give the trial court an opportunity to rule. Null v. State, 690 S.W.3d 305, 

318 (Tex. Crim. App. 2024). Neither opposing counsel nor the trial court had that 
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opportunity here. We hold that Garibay has not preserved his complaint. See Tex. R. 

App. P. 33.1; Chauncey v. State, No. 14-13-00950-CR, 2015 WL 3982858, at *7 (Tex. 

App.—Houston [14th Dist.] June 30, 2015, pet. ref’d) (mem. op., not designated for 

publication).

• Assuming Error Preserved

Assuming Garibay had preserved error, his complaint has no merit. Under 

Section 3(a)(1) of Article 37.07, during the punishment trial, any matter the trial court 

deems relevant to sentencing may be offered into evidence. See Tex. Code Crim. Proc. 

Ann. art. 37.07, § 3(a)(1); Beham v. State, 559 S.W.3d 474, 478–79 (Tex. Crim. App. 

2018). To allow juries to tailor appropriate punishments, the legislature has expressly 

permitted evidence of unadjudicated extraneous crimes and bad acts. Sanders v. State, 

422 S.W.3d 809, 815 (Tex. App.—Fort Worth 2014, pet. ref’d) (citing Tex. Code 

Crim. Proc. Ann. art. 37.07, § 3(a)(1)). Relevance in the context of a punishment trial

is not the same as relevance in the context of an offense trial. See Fowler v. State, 

126 S.W.3d 307, 311 (Tex. App.—Beaumont 2004, no pet.) (referring to Tex. R. Evid 

401). While we agree that the extraneous offenses and bad acts were prejudicial, in the 

context of a punishment trial, we disagree that they were unfairly prejudicial. See Cohn 

v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993); Gomez v. State, No. 02-17-00089-

CR, 2018 WL 547626, at 2 n.3 (Tex. App.—Fort Worth Jan. 25, 2018, no pet.) (mem. 

op., not designated for publication). Accordingly, assuming Garibay had preserved his 
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Rule 403 objection, the trial court did not abuse its discretion by overruling Garibay’s 

objection. See Fowler, 126 S.W.3d at 311.

III. CONCLUSION

We overrule Garibay’s sole issue and affirm the trial court’s judgment.

/s/ Mike Wallach

Mike Wallach

Justice

Do Not Publish

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

Delivered: August 22, 2024