Michael James Williams A/K/A Michael James Williams, Jr. v. State

Affirmed and Memorandum Opinion filed April 21, 2009 Affirmed and Memorandum Opinion filed April 21, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00317-CR ____________ MICHAEL JAMES WILLIAMS A/K/A MICHAEL JAMES WILLIAMS, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 252nd District Court Jefferson County, Texas Trial Court Cause No. 96566 M E M O R A N D U M   O P I N I O N Appellant Michael James Williams pleaded no contest to aggravated sexual assault and received forty-five years= imprisonment. In his sole issue, appellant contends that the trial court erred in admitting extraneous offense evidence during the guilt or innocence portion of the trial. We affirm. Appellant was indicted for the aggravated sexual assault of the complainant in 2006. In a bench trial, appellant pleaded no contest, and the State presented the following evidence to substantiate the plea.[1] The complainant testified that she and appellant began a relationship in 1997 and were married in 2004, after appellant was incarcerated for an unrelated offense. Over appellant=s objections, the trial court allowed the complainant to recount numerous instances in which appellant had beaten and physically abused her during their relationship. The couple divorced in 2005 while appellant was still incarcerated. The complainant testified that after appellant was freed in 2006, he arrived at her door one evening, physically abused her, threatened to cut her throat with a knife, and sexually assaulted her. Appellant claimed, despite his no contest plea, that on the night in question he and the complainant had consensual sex. He claimed that afterwards the complainant became enraged and attacked him with a box-cutter when he admitted dating a woman she disliked. According to appellant, he elbowed and slapped the complainant in a reflexive response and in self-defense, cutting the complainant=s ear and eyebrow. The trial court found the evidence sufficient to substantiate the plea and found appellant guilty. The parties chose not to offer additional punishment evidence, and, following closing arguments, the trial court sentenced appellant to forty-five years= imprisonment. Appellant now contends that the trial court committed reversible error in admitting the complainant=s testimony regarding appellant=s extraneous assaults on her. We review a trial court=s ruling on the admission of evidence for an abuse of discretion. Montgomery v. State, 819 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh=g). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101B02 (Tex. Crim. App. 1996). Appellant argues that the trial court erred in admitting extraneous offense evidence during the guilt or innocence portion of the trial. However, when, as here, a defendant waives a jury trial and enters a no contest plea on a non-capital offense, the proper procedure is to conduct a unitary trial. Saldana v. State, 150 S.W.3d 486, 489 (Tex. App.CAustin 2004, no pet.) (citing Barfield v. State, 63 S.W.3d 446, 449 (Tex. Crim. App. 2001)); Lopez v. State, 96 S.W.3d 406, 412 (Tex. App.CAustin 2002, pet. ref=d) (same). In a unitary trial, there is no Abifurcation@ (where the guilt/innocence and punishment stages are conducted separately), even when the trial court employs procedures characteristic of bifurcation. Saldana, 150 S.W.3d at 489. Rather, such a procedure is properly characterized as a unitary trial punctuated by a recess in the middle. Id. Accordingly, in a unitary trial, as in a punishment hearing, the parties may offer any evidence the court deems relevant to sentencing, including unadjudicated extraneous offenses and previous bad acts attributable to the defendant. See Tex. Code Crim. Proc. Ann. art. 37.07(3)(a)(1), (g) (Vernon Supp. 2008); Watson v. State, 974 S.W.2d 763, 765 (Tex. App.CSan Antonio 1998, pet. ref=d) (finding no error in admission of victim impact evidence prior to guilt adjudication in no contest plea and citing article 37.07 section 3 for proposition that State is entitled to offer any matter relevant to sentencing at punishment phase); see also Pargas v. State, No. 05-04-01682-CR, 2005 WL 2009567, at *5B6 (Tex. App.CDallas Aug. 23, 2005, no pet.) (not designated for publication) (holding, in review of no contest plea, that trial court did not abuse its discretion by admitting extraneous offense evidence prior to finding sufficient evidence of appellant=s guilt). Here, appellant pleaded no contest before the trial court, rendering the proceeding a unitary one in which all evidence was admitted both to substantiate appellant=s plea and to allow the trial court to fashion an appropriate sentence. See Saldana, 150 S.W.3d at 489. Though the trial court employed procedures characteristic of bifurcation by finding the evidence sufficient to substantiate appellant=s plea and then asking for any additional evidence and arguments before assessing punishment, the proceeding remained unitary. See id. Because both guilt and punishment are at issue in such a proceeding, the trial court did not err by admitting the challenged evidence, which was admissible under Texas Code of Criminal Procedure article 37.07(3)(a)(1)[2] on the issue of punishment to aid the trial court in fashioning an appropriate sentence.[3] Indeed, as appellant points out, the trial court specifically referred to the challenged evidence in announcing appellant=s sentence. We hold that the trial court did not err in admitting the challenged evidence. We therefore overrule appellant=s sole issue. Having overruled appellant=s sole issue, we affirm the trial court=s judgment. /s/ Leslie B. Yates Justice Panel consists of Justices Yates, Seymore, and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b). [1] When a defendant waives his right to a jury and pleads no contest to a felony, the Code of Criminal Procedure requires the State to introduce evidence into the record showing the defendant=s guilt to serve as the basis for the trial court=s judgment. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); McDougal v. State, 105 S.W.3d 119, 120 (Tex. App.CFort Worth 2003, pet. ref=d). [2] At trial, appellant admitted beating complainant on previous occasions and does not dispute the sufficiency of the evidence proving that the prior bad acts were attributable to him. See Tex. Code Crim. Proc. Ann. art. 37.07(3)(a)(1); Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005) (holding State need only show beyond a reasonable doubt that prior extraneous offenses or bad acts are attributable to defendant for purposes of article 37.07(3)(a)(1)). We therefore do not address that issue. [3] We note that even if this had been a bifurcated proceeding, admission of the challenged evidence would not have constituted reversible error. Evidence of extraneous offenses and prior bad acts are admissible, inter alia, to rebut a defensive theory. See Tex. R. Evid. 404(b); Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Error in prematurely offering evidence of extraneous offenses to rebut a defensive theory may be rendered harmless if the defendant raises a defensive theory which the prematurely admitted evidence would have been admissible to rebut. Rubio v. State, 607 S.W.2d 498, 502 (Tex. Crim. App. 1980) (en banc); Dickson v. State, 246 S.W.3d 733, 744 (Tex. App.CHouston [14th Dist.] 2008, pet. ref=d). Appellant raised the defense of consent and argued that the injuries to appellant were due in part to a reflex rather than force. The challenged evidence would have served to rebut appellant=s claim. See Tinker v. State, 148 S.W.3d 666, 669 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (stating that lack of consent in sexual assault prosecution can be proven by the threat or use of physical force or violence).