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Click here for the full text of this decision FACTS:A jury convicted appellant of one count of indecency with a child by contact and sentenced him to twenty years confinement, the maximum term, and a $5,000 fine. On appeal, appellant claimed that, at punishment, the trial court erred in failing to instruct the jury that it could consider evidence of extraneous offenses only if it believed beyond a reasonable doubt that appellant committed those offenses. Based on its findings that: 1. during closing argument, the prosecutors focused on the extraneous-offense evidence; 2. the issue of guilt was hotly contested; and 3. the jury returned the maximum term of imprisonment, the court of appeals concluded that “the failure to properly include the reasonable-doubt instruction was egregious and likely resulted in an unfair trial on punishment.” HOLDING:Reversed and remanded. When there is jury-charge error, whether objected to or not objected to, the standard for assessing harm is controlled by Almanza v. State, 686 S.W.2d 157 (Tex Crim. App. 1985). Although Almanza does not explicitly resolve the question of the effect of an affirmative statement that there are no objections to the charge, it does speak to an “error in the charge [that] was the subject of a timely objection in the trial court” and an error to which “no proper objection was made at trial.” The possible consequences of error in the charge are thus limited to two and are determined by whether timely objection was made in the trial court. An affirmative denial of objection is clearly not a timely objection, so it must be governed by the rules for failure to object. The court holds that an affirmative denial of objection, as in this case, shall be deemed equivalent to a failure to object. An appellant may raise such unobjected-to charge error on appeal, but may not obtain a reversal for such error unless it resulted in egregious harm. In this case, the punishment-phase evidence of prior offenses committed by appellant included one final conviction, a discharged deferred adjudication, and a probation and a second deferred adjudication for which there was no evidence of revocation or adjudication. All of these offenses had been admitted to by appellant during the guilt/innocence phase, thus identity was not an issue. In any final conviction, the evidence was subjected to judicial testing of guilt with a standard of proof of beyond a reasonable doubt, and the burden of proof was met. In any probation, the defendant has pleaded guilty or been found guilty by a judge or jury. In any deferred adjudication, the defendant has pleaded guilty, and the court has found sufficient evidence to support a finding of guilty. In all these circumstances, the burden of proof has been met. Thus, in all such cases no further proof of guilt is required. The trial court did not err in refusing to give the requested instruction when, as here, all of the evidence as to appellant’s criminal behavior was in the form of prior offenses which had been subjected to judicial testing under the proper burden and the burden had been met. Giving such an instruction is a useless act if no unadjudicated offenses have been introduced. The state’s first ground for review is sustained. Because failure to give the instruction in this case was not error, no harm to appellant resulted from the lack of such an instruction. OPINION:Johnson, J., delivered the unanimous opinion of the court.

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