1 T EX . R. A PP . P. 47.4. NO. 07-01-0450 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C JANUA RY 8, 2003

______________________________ RAMON LIRA, AP PELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 69 TH DISTRI CT COURT OF MOORE COUNT Y; NO. 3018; HON ORABLE RON EN NS, JUD GE

_______________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ. MEM ORAN DUM OP INI ON 1 Upon a plea of

not guilty, appellant Ramon Lira w as convicted of aggravated sexual ass ault of a child a nd punishment was assessed at 20 years confi nement. By three issues,2

appellant contends 1) the trial court com m itte d fu nda m ent al er ror in c har ging thej ury

in the application paragraph of the court’s charge on gu ilt/i nnocence on an al ternative theory of agg rav ate d se xu al as sau lt, w hich the ory w as n ot in clud ed in the indictment; 2) the trial court com mitted fund amental error in faili ng to includ e in the jury c harge a limiting instruction regarding extraneous offense s; and 3) he was denied effective assistance of counsel at trial. Based upon the rationale ex pressed herein, we a ffirm. Byhis first issue, appellant contends 1) the trial court com mitted fund amental error in charging the jury in the application paragraph ofthe court’s charge on guilt /innocence on an alternative theory of aggravated sex ual assault, which theory w as not included in the indictment. W here, as here, cha rge error i s not properl y preserved, egr egious har m m ust b e shown b efore reversal will be required. Hutch v. S tate, 922 S.W.2 d 166, 1 70-7 1 (T ex.Cr.A pp. 1996) (citing Almanza v . State, 686 S .W .2d 157, 171 (Tex .Cr.App. 19 85 ) (op’n on reh’g)). In light of the j ury charge itself, the state of the evidence and argum ent of counsel, we cannotsay the charge error deprived appellant of a fair and impartial trial as required for a showing of egregious harm

. Hutch , 92 2 S .W.2d a t 17 1. I ssu e on e is overruled. Byhis second issue, appellant contends the trial court com mitted fund amental error in faili ng to inc lude in t he cour t’s cha rge a lim it ing in struction r egardin g the jury’s consideration of the extraneous of fenses testified to by the v ictim during the trial. W e disagree. A party opposing evidence has the burden of requesting the limiting instruction3

atthe introduction of the evidence. Ham moc k v. State, 46 S.W.3d 889, 895 (Tex.Cr.App. 2001). A request for a lim iting instruction must be m ade atthe first opp ortunity, otherwise the evidence is adm issible for all purposes. T EX R. E V ID . 105(a); Hammock , 46 S.W.3d at 895. Issue tw

o is overruled. Byhis third issue, appellant contends he wasdenied effe ctive assistance of counsel at trial. W e disagree. W here, as here, the adequac y of trial counsel is based upon acts of om ission rather than com mission, the evidence nec ess ary to s upp ort

thealleg atio n is usu ally outside the rec ord and has not bee n fu lly d eve lope d fo r pu rpo sesof a ppe al. W ilson v. State, 68 8 S.W.2d 21 2, 214 (Tex .App. –Corpus Christi 198 5, no pe t.). Ap pell ant’s contention s of ineffecti ve assistance of cou nsel are ne ither fi rmly demon strate d bythe record nor is the record suff icient to overcom e the strong presum ption thatcounsel’s conduct fell w ithin the lim its of a wide range of reasonabl e representat ion. Appel lant’s third issue is overruled. Accordingly, the j udgme nt of the trial court is affirmed.

Don H. Rea vis Justice Do not publish.