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In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-14-00066-CR

WILLIAM JASON PUGH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 402nd Judicial District Court

Wood County, Texas

Trial Court No. 22,041-2013

Before Morriss, C.J., Moseley andBurgess, JJ.

Memorandum Opinion by ChiefJustice Morriss
MEMORANDUM OPINION

Under procedures authorized by Article 38.37 ofthe Texas Code ofCriminal Procedure,

William Jason Pugh was notified that, as part ofthe prosecution against him for two counts of

aggravated sexual assault of S.C.,1 a child, in Wood County, the State would seek to introduce

evidence that Pugh had committed four extraneous offenses of aggravated sexual assault of

children, including E.B. in Wood County, CM. in both Wood County and Rains County, and the

alleged victim in this case, S.C, in a separate act in Wood County. The extraneous-offense

evidence was admitted, the jury found Pugh guilty of both counts, and he was sentenced to two

terms of life imprisonment to run concurrently.

Merc, Pugh appeals from his conviction, in trtai court case number 22,04 i-2013, ofdigital

penetration ofthe sexual organ of S.C. when she was achild younger than fourteen years of age.2

He argues that the State's notice of intent to introduce extraneous-offense evidence was defective,

the extraneous-offense evidence fell short of the standard to allow its admission, and the jury

instructions failed to instruct the jury how to apply the beyond-a-reasonable-doubt standard to the

extraneous offenses.

'To protect the children's privacy, we refer to the parents by pseudonyms and the children by their initials See Tex

Fam. Code Ann. § 109.002(d) (West 2014).

2ln acompanion appeal, our case number 06-14-00067-CR, Pugh appeals his conviction and sentence from trial court

case number 22,042-2013 in Wood County, in which he was prosecuted for penetration of S.C.'s sexual organ with

Pugh ssexual organ when S.C. was less than fourteen years of age. By separate opinion, we also decide that appeal

this date.
We affirm the trial court's judgment because (1) Pugh failed to preserve error regarding

the State's Article 38.37 notice, (2) the trial court was within its discretion to admit extraneousoffense evidence, and (3) there is no error in the jury charge.

(1) Pugh Failed to Preserve Error Regarding the State's Article 38.37Notice

Article 38.37 ofthe Texas Code of Criminal Procedure, titled "Evidence of extraneous

offenses or acts," contains aRule of Evidence applicable to certain types ofsexual abuse cases,

including this one. See Tex. Code Crim. Proc Ann. art. 38.37 (West Supp. 2014). In 2013,

Sections 2and 2-a were added to Article 38.37 to "allow evidence that a person had committed

certain previous criminal offenses w.'thany child victim to be admitted into trials for certain

offenses witli child victims." Act ofMay 28, 1995, 74 th Leg., R.S., ch. 318, §48, 1995 Tex. Gen.

Laws 2734, 2748-49, amended by Act ofMay 17, 2013, 83d Leg., R.S., ch. 387, §1, sees. 2, 2-a,

2013 Tex. Sess. Law Serv. 1168, 1169 (West) (effective Sept. 1, 2013); HOUSE COMM. ON

Criminal Procedure Reform. Select, Bill Analysis, Tex. H.B. 330, 83d Leg., R.S. (2013);

see Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83d Leg., R.S. (2013).

Section 3ofArticle 38.37 requires the State to "give the defendant notice ofthe state's intent to

introduce" such evidence in the State's case-in-chief "not later than the 30th day before the date

ofthe defendant's trial." Tex. Code Crim. Proc Ann. art. 38.37, §3.

Here, the State gave notice to Pugh that it would seek to introduce extraneous-offense

evidence under Article 38.37. Pugh contends, however, that the State's notice failed to meet the

statutory requirements of Article 38.37.
To preserve a complaint for appellate review, an appellant must have presented to the trial

court a timely request, objection, or motion stating the specific grounds for the ruling desired.

Tex. R. App. P. 33.1(a)(1)(A); Hartson v. State, 59 S.W.3d 780, 787-88 (Tex. App.—Texarkana

2001, no pet.) (complaint of lack of notice of intent to use prior bad act, not preserved because no

similar objection made attrial). Here, Pugh failed to object tothe contents ortiming ofthe State's

notice.' Therefore, Pugh failed to preserve this issue for ourreview.

(2) The Trial Court Was Within Its Discretion to Admit Extraneous-Offense Evidence

Pugh also argues that the trial court erred in allowing the admission of Article 38.37

extraneous-offense evidence. The relevant portions of Article 38.37 state,

(a) Subsection (b) applies only to the trial of a. defendant for:

(1) an offense under any ofthe following provisions ofthe Penal Code:

(E) Sections 22.021(a)(1)(B) and (2) (Aggravated Sexual

Assault of a Child);

(b) Notwithstanding Rules 404 and 405, Texas Rules ofEvidence, and subject

to Section 2-a, evidence that the defendant has committed a separate

offense described by Subsection (a)(1). . . may be admitted in the trial of

an alleged offense described by Subsection (a)(1) ... for any bearing the

evidence has on relevant matters, including the character ofthe defendant

and acts performed in conformity with the character ofthe defendant.

JDuring the pretrial hearing on Article 38.37 issues, Pugh objected "to any extraneous offenses coming into the State's

case-in-chief under 38.37," arguing that it violated due process and the Fifth Amendment and was more prejudicial

than probative.

4
Tex. CODE Crim. Proc Ann. art. 38.37, §2. However, before such extraneous-offense evidence

may be introduced at trial, the trial court must "(1) determine that the evidence likely to be admitted

at trial will be adequate to support afinding by the jury that the defendant committed the separate

offense beyond areasonable doubt; and (2) conduct ahearing out ofthe presence ofthe jury for

that purpose." Tex. Code Crim. Proc. Ann. art. 38.37, §2-a.

A trial court's ruling on the admissibility of extraneous offenses is reviewed under an

abuse-of-discretion standard. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011); see

Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). "A trial court does not abuse its

discretion if the decision to admit evidence is within the 'zone of reasonable disagreement.'"

Marsh v. State, 343 S.W.3d 475, 478 (Tex. App.—Texarkana 2011, pet. refd) (quoting

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim, App. 1990) (op. on reh'g)). "Ifthe trial

court's decision on the admission of evidence is supported by the record, there is no abuse of

discretion, and the trial court will not be reversed." Id. (citing Osbourn v. State, 92 S.W.3d 531,

537 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379). Where there has been no abuse

of discretion, we will not substitute our own decision for that ofthe trial court. Id. (citing Moses

v. Stole, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)).

In the Article 38.37 hearing, the State sought to introduce evidence that Pugh had

committed the extraneous offenses of aggravated sexual assault of a child with E.B. in Wood

County, with CM. in both Wood County and Rains County, and with the alleged victim in this
case, S.C, in Wood County. During the hearing, the court viewed recorded Child Advocacy

Center (CAC) interviews from the three alleged victims.4

The victim ofthe charged offense, S.C, described two separate instances ofPugh sexually

abusing her. The first occurred when she was in the sixth grade. She and Pugh were on the couch

in the living room of Pugh's house when he took off her clothes and pulled his shorts and

underwear down. He touched her vagina with his hand and stuck his finger into her vagina and

then put his penis in her vagina. He told her not to tell anyone about it because he would get in

trouble.

In her interview, extraneous-offense victim, CM., said that she, her mother, and her sister

lived witli Pugh for severai years. When she was six or seven years old, Pugh began sexually

abusing her. The first time, Pugh forced her to perform oral sex on him. After that, Pugh forced

her to have vaginal intercourse with him two to three times per week for about three years. Several

times, Pugh told her that, ifshe told anyone about the abuse, he would kill her. The abuse having

continued, CM. believed she was in the fourth grade when she ran away from home. After she

was apprehended, she was put on house arrest, and the abuse "got worse" because Pugh forced

intercourse on her more frequently. Two or three weeks later, she made an outcry to her

grandmother, and the abuse stopped. C.M.'s mother and Pugh "split up" about ayear later.

Extraneous victim, E.P., twenty-one years' old at the time oftrial, stated that Pugh first

sexually abused her at her parent's home in Mineola when she was thirteen years old. She was in

the bathroom, wearing atowel, about to take ashower when Pugh entered the bathroom, removed

4The State informed the trial court that it would call all three ofthe victims to testify at trial

6
her towel, and had intercourse with her on the bathroom floor. Atornear the end of her seventhgrade year, while she was babysitting at Pugh's house in Mineola, he forced her to have

intercourse. Athird and fourth instance ofabuse occurred during the summer between her seventhand eighth-grade years, when she and her parents were at Pugh's house getting ready for a party

that would be held there later that night. Her parents would leave the house for afew minutes, and

Pugh would "[do] it again." The abuse stopped when she told him that, ifhe did not stop, she

would tell her father.

After viewing the recorded CAC interviews, the trial court found that the evidence likely

to be admitted at trial, if believed, would be adequate to support afinding by the jury that Pugh

had commuted the extraneous offenses beyond areasonable doubt. On appeal, Pugh argues that

the extraneous-offense evidence regarding S.C. is insufficient because there was no evidence of

(1) the county in which the offenses occurred, (2) Pugh's mens rea at the time the offenses were

committed, or(3) the date ofthe offenses.5 He does not challenge the admission ofthe extraneousoffense evidence regarding CM. or E.B.

The trial court's responsibility at an Article 38.37 hearing is to determine whether "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." Tex. Code Crim. Proc

Ann. art. 38.37, §2-a. Aperson commits the offense ofaggravated sexual assault ofa child ifhe

"intentionally or knowingly . . . causes the penetration ofthe anus or sexual organ of achild by

3ln support of his arguments, Pugh exclusively cites the testimony of Karen, S.C.'s mother, and Martha Dykes, the

program director ofthe CAC. However, Karen and Dykes testified as a part ofthe -'outcry hearing," and their

testimony was not before the trial court at the time itmade its Article 38.37 ruling.

7
any means" and the child is younger than fourteen years of age. Tex. Penal Code Ann.

§ 22.02l(a)(l)(B)(i), (a)(2)(B) (West Supp. 2014).

The county in which the offense occurred is not an element of the offense of aggravated

sexual assault ofachild under Section 22.021 ofthe Texas Penal Code. Rather, proofofthe county

in which an offense occurred is a jurisdictional requirement for the prosecution of an offense.

Here, the State's Article 38.37 notice lists the county where each of the extraneous offenses,/

allegedly occurred, and Pugh was not being prosecuted for the offenses at that time. Thus, for

purposes of proving an extraneous offense under Article 38.37, there was no requirement that the

State prove the county in which the extraneous offense occurred. SeeBurke v. State, 371 S.W.3d

252, 257 (Tex. App.—Houston [Ist Dist.j 20! !., pet. dism'd, untimely filed); see also Malpica v.

State, 108 S.W.3d 374, 378 (Tex. App.—Tyler 2003, pet. ref d) (citing Stevenson v. State, 963

S.W.2d 801 (Tex. App.—Fort Worth 1998, pet. refd)).

"Intent may ... be inferred from circumstantial evidence such as acts, words, and the

conduct ofthe appellant." Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Here,

the trial court could have found that Pugh's removing his and S.C.'s clothing, as well as his

penetration of S.C.'s vagina, would support a rational jury's determination that the'acts were

committed intentionallyor knowingly.

Pugh also contends that the extraneous-offense evidence was insufficient because there

was no evidence ofthe date when the offenses allegedly occurred, as isrequired by statute. See

Tex. Code Crim. Proc Ann. art. 37.07, § 3(g) (West Supp. 2014). Pugh's reliance ismisplaced

because Article 37.07, Section 3, entitled "Evidence of prior criminal record in all criminal cases
after afinding ofguilty," is inapplicable because it governs the procedure for the admissibility of

evidence at punishment, not guilt/innocence.6 Tex. Code Crim. Proc Ann. art. 37.07, §3(West

Supp. 2014).

In light oftheArticle 38.37 hearing, we cannot say thatthe trial court abused itsdiscretion

in finding that the evidence likely to be admitted at trial would be adequate to support afinding by

the jury that the defendant intentionally and knowingly committed the separate offenses against

S.C. beyond a reasonable doubt.7 Accordingly, we overrule this point oferror.

(3) There IsNoError in the Jury Charge

In its jury charge, the trial court set forth the elements ofthe offense ofaggravated sexual

assault ofa child and also submitted the following to the jury:

You are instructed that ifthere is any testimony before you in this case regarding

the defendant having committed offenses other than the offense alleged against him

in the indictment in this case, you cannot consider said testimony for any purpose

unless you find and believe beyond a reasonable doubt that the defendant

committed such other offenses, ifany were committed, and even then you may only

consider the same in determining the intent ofthe defendant, ifany, in connection

with the offense, if any, alleged against him in the indictment in this case, and for

no other purpose.

In any event, failure to comply with Article 37.07 does not render extraneous-offense evidence per se inadmissible

Roethel v. Stale, 80 S.W.3d 276, 282 (Tex. App.—Austin 2002, no pet.). Unlike the Rules ofEvidence, "[t]he notice

requirement found in section 3(g) . . . does not relate to the substantive admissibility ofthe evidence." Id. Rather,

because the "purpose ofthe notice requirement is to enable the defendant to prepare to meet extraneous offense'

evidence," adeficiency in the notice is analyzed on how itaffected adefendant's ability to prepare for the evidence.

Id.; see Andrews v. State, 429 S.W.3d 849, 860 (Tex. App.—Texarkana 2014, pet. refd); James v. State, 47 S.W.3d

710, 713 (Tex. App.—Texarkana 2001, no pet.). Here, S.C. and the other alleged victims, during the Article 38.37

hearing, testified in detail about the abuse they suffered at Pugh's hands and were subjected to his cross-examination.

Consequently, Pugh does not claim on appeal that he was surprised by their testimony attrial orthat the omission of

the date on which the abuse occurred impaired his ability to prepare for their testimony attrial.

7Pugh does not contend that the evidence actually introduced at trial was insufficient to prove the extraneous offense

beyond a reasonable doubt.

9

e.
Pugh concedes that he did not object to the trial court's charge. He argues, however, that the jury

charge should have contained an application paragraph for each of the extraneous offenses for

which the Stale offered testimony.

Our review ofalleged jury charge error involves a two-step process. Abdnor v. State, 871

S.W.2d 726, 731 (Tex. Crim. App. 1994); see Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim.

App. 2009); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Initially, we determine

whether an error occurred, and then "determine whether sufficient harm resulted from theerror to

require reversal." Abdnor, 871 S.W.2d at 73\-32; Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984) (op. on reh'g), reaff'dby Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.

App. 2003).

The purpose ofthe application paragraph isto apply the relevant law, definitions found in

the abstract, and general legal principles to the particular facts ofthe case. Vasquez v. State, 389

S.W.3d 361, 366 (Tex. Crim. App. 2012) (citing Gray v. State, 152 S.W.3d 125, 127-28 (Tex.

Crim. App. 2004)). Here, the specific application portion ofthe charge addressed only the State's

allegation that Pugh committed aggravated sexual assault ofS.C. and omitted any reference to the

extraneous-offense instruction. However, we find that the Article 38.37 instruction present in the

jury charge was an additional application instruction because, even though general in nature, the

instruction applied the requirements ofArticle 38.37 to "any testimony" the jury heard "regarding

the defendant having committed offenses other than the offense alleged against him in the
indictment."8 Further, Pugh has failed to cite any authority on point demonstrating that any further

instruction or charge was required to be submitted to the jury. We find no error in the jury charge.

We affirm the trial court's judgment.

Date Submitted: February 13,2015

Date Decided: April 15,2015

Do Not Publish

Josh R. Morriss, III

ChiefJustice

8We presume the jury obeyed this instruction. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003)

11
Court of Appeals

Sixth Appellate District of Texas

JUDGMENT

William Jason Pugh, Appellant

No. 06-14-00066-CR v.

The State ofTexas, Appellee

Appeal from the 402nd Judicial District

Court of Wood County, Texas (Tr. Ct. No.

22,041-2013). Opinion delivered by Chief

Justice Morriss, Justice Moseley and Justice

Burgess participating.

As stated in the Court's opinion ofthis date, we find no error in the judgment ofthe court

below. We affirm thejudgment of the trial court.

We note that the appellant, William Jason Pugh, has adequately indicated his inability to

pay costsof appeal. Therefore, we waive payment of costs.

ATTEST:

Debra K. Autrey, Clerk

RENDERED APRIL 15, 2015

BY ORDER OF THE COURT

JOSH R. MORRISS, III

CHIEF JUSTICE
FILE copy

Chief Justice

Josh R. Morriss, III

Justices

Bailey C. Moseley

Ralph K. Burgess

Court ofAppeals

Sixth Appellate District

State ofTexas

Clerk

Debra K. Autrey

Bi-State Justice Building

100 North State Line Avenue #20

Texarkana,Texas 75501

(903) 798-3046

Jim Wheeler

Wood County District Attorney

P O Box 689

Quitman, TX 757"83

* DELIVERED VIA E-MAIL *

Phil N. Smith

Smith & Smith Law Firm

300 Oak Avenue

Sulphur Springs, TX 75482

* DELIVERED VIA E-MAIL *

April 15,2015

Henry Whitley

Special Assistant District Attorney

P O Box 689

Quitman, TX 75783

* DELIVERED VIA E-MAIL *

RE: Appellate Case Number: 06-14-00066-CR

Trial Court Case Number: 22,041-2013

Style: William Jason Pugh

v.

The State of Texas

The Judgment ofthe Trial Court in the referenced proceeding on appeal from Wood County was this

date AFFIRMED, in conformity with thewritten Opinion of thisCourt of even date.

A true copy of this Court's Opinion and Judgment is enclosed.

cc:

Respectfully submitted,

Debra K. Autrey, Clerk

By.

Hon. G. Timothy Boswell (DELIVERED VIA E-MAIL)

Jenica Turner (DELIVERED VIAE-MAIL)

Deputy
In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-14-00067-CR

WILLIAM JASON PUGH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 402nd Judicial District Court

Wood County, Texas

Trial Court No. 22,042-2013

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION

On September 12, 2013, in Wood County, Texas, William Jason Pugh was charged, by

separate indictments, with two counts ofaggravated sexual assault ofS.C, a child. During the

trial, evidence that Pugh committed separate extraneous offenses was admitted under Article 38.37

ofthe Texas Code ofCriminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.37 (West

Supp. 2014). After ajury trial, Pugh wasfound guilty of both counts and sentenced to two terms

of life imprisonment to run concurrently.

Pugh has filed asingle briefin which he raises issues common to both ofhis appeals. Here,

Pugh appeals from his conviction in trial court cause number 22,042-2013 for aggravated sexual

assault ofa child by penetration ofthe sexual organ ofa child younger than fourteen years ofage

byhissexual organ and argues (1)thatthe State's notice of intent to introduce extraneous offenses

during the guilt/innocence phase pursuant to Article 38.37 of the Texas Code of Criminal

Procedure was deficient; (2) that the trial court erred by finding the State's extraneous-offense

evidence was "enough to find, beyond areasonable doubt, that the extraneous offenses occurred";

and (3) that the jury instructions failed to instruct the jury how to apply the beyond-a-reasonabledoubt standard to the extraneous offenses.

We addressed these issues in detail in our opinion ofthis date on Pugh's appeal in cause

number 06-14-00066-CR. Forthe reasons stated therein, we likewise conclude that errorhas not

been shown in this case.
We affirm thetrial court'sjudgment.

Date Submitted: February 13, 2015

Date Decided: April 15,2015

Do Not Publish

BaileyC. Moseley

Justice
Court of Appeals

Sixth Appellate District of Texas

JUDGMENT

William Jason Pugh, Appellant

No. 06-14-00067-CR v.

The State ofTexas, Appellee

Appeal from the 402nd Judicial District

Court of Wood County, Texas (Tr. Ct. No.

22,042-2013).. Memorandum Opinion

delivered by Justice Moseley, Chief Justice

Morriss and JusticeBurgess participating.

As stated in the Court's opinion ofthis date, we find no errorin thejudgment of the court

below. We affirm the judgment ofthe trial court.

We note that the appellant, William Jason Pugh, has adequately indicated his inability to

pay costs of appeal. Therefore, we waive payment of costs.

ATTEST:

Debra K. Autrey, Clerk

RENDERED APRIL 15, 2015

BY ORDER OF THE COURT

JOSH R. MORRISS, III

CHIEF JUSTICE
Chief Justice

Josh R. Morriss, III

Justices

Bailey C. Moseley

Ralph K. Burgess

Jim Wheeler

Wood County District Attorney

P O Box 689

Quitman, TX 75783

* DELIVERED VIA E-MAIL *

Phil N. Smith

Smith & Smith Law Firm

300 Oak Avenue

Sulphur Springs, TX 75482

* DELIVERED VIA E-MAIL *

CourtofAppeals

Sixth Appellate District

State ofTexas

April 15,2015

FILE COPY

Clerk

Debra K. Autrey

Bi-State Justice Building

100North State Line Avenue #20

Texarkana,Texas 75501

(903) 798-3046

Henry Whitley

Special Assistant District Attorney

P O Box 689

Quitman, TX 75783

* DELIVERED VIA E-MAIL *

RE: Appellate Case Number: 06-14-00066-CR, 06-14-00067-CR

Trial Court Case Number: 22,041-2013, 22,042-2013

Style: William Jason Pugh

v.

The State of Texas

The Judgment ofthe Trial Court in the referenced proceeding on appeal from Wood County was this

date AFFIRMED, inconformity with the written Opinion ofthis Court ofeven date.

A true copyof this Court's Opinion and Judgment is enclosed.

cc:

Respectfully submitted,

Debra K. Autrey, Clerk

By.

Hon. G. Timothy Boswell (DELIVERED VIA E-MAIL)

Jenica Turner (DELIVERED VIA E-MAIL)

Deputy