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Click here for the full text of this decision FACTS:A jury found Carl Edwin Martin II guilty of the offenses of sexual assault and indecency with a child, and the trial judge sentenced him to life imprisonment. The victim was S.D., the daughter of Martin’s girlfriend. Martin had been dating this girlfriend since S.D. was 5 years old. S.D. alleged that Martin had touched her and made her touch him in sexual ways on multiple occasions, beginning when she was around 11 years old, and raped her in 2001 when she was 16 years old. The indictment against Martin, however, was based on the specific allegations that Martin had touched S.D. in a sexual manner on or about Aug. 8, 1998. In response to his request, the state provided Martin with a listing of 16 Texas Code of Criminal Procedure Article 37.07 crimes, wrongs or bad acts for use in the punishment phase and nine Article 38.37 crimes, wrongs or bad acts that the state planned to present in its case-in-chief to show the state of mind and relationship between Martin and S.D. The list also included two Texas Rule of Evidence 404(b) crimes, wrongs or bad acts. The trial court determined that the extraneous offense evidence was admissible and that its probative value outweighed its potential for prejudice. On his appeal of his conviction, Martin challenged, among other things, the admission of the extraneous offense evidence. HOLDING:Affirmed. Martin contends that the trial court abused its discretion by admitting, over objection, extraneous offense evidence against him that he raped S.D. Specifically, he argues that the objected-to evidence should not have been admitted because evidence of the penetration of S.D.’s sexual organ with his penis was equal to or more heinous than the indicted offenses of oral sex and breast touching. Martin also argues that the “only corroborative force” of the evidence was to show that he was behaving in conformity with his character. The state counters that the evidence was necessary to show that Martin was acting with the “intent to arouse or gratify his sexual desire” and to rebut Martin’s claim of fabrication. The court concludes that the trial court abused its discretion by admitting the objected-to extraneous offense evidence. While some of S.D.’s testimony regarding the objected-to extraneous offense evidence may have served to make a fact of consequence slightly more probable, i.e., that Martin acted with the intent to arouse or gratify his sexual desire, the court believes that the danger of unfair prejudice substantially outweighed its probative value. The court points out that S.D. was allowed to testify in detail regarding a particularly heinous extraneous offense � the rape of a young girl � and to do so in some detail. The court states that such testimony has significant potential to impress the jury “in some irrational but nevertheless indelible way,” creating the potential for the jury to reach a decision on an improper basis. Further, the court finds that there was substantial other evidence from which a rational jury could have found that Martin acted with the intent to arouse or gratify his sexual desire. Thus, the court holds that the state had little or no need for this evidence to prove the intent element. The court notes, however, that because the admission of the evidence was not a constitutional error, the court is obliged to disregard it unless it affected Martin’s substantial rights. The court held that it did not because the record reflected ample evidence of Martin’s guilt and nothing suggested that the state offered the evidence as a way to invoke an emotional reaction by the jury. Also, the court points out that the trial court provided a limiting instruction regarding testimony of extraneous offenses in the jury charge. But Martin contends that the trial court erred by failing to give a contemporaneous limiting instruction at the time the extraneous offense evidence of rape was admitted. Martin argues that he attempted to request a limiting instruction from the court at that time but was cut off by the prosecutor and the court. The court finds that Martin objected to the extraneous evidence, rather than requesting a limiting instruction. Because Martin did not request a limiting instruction at the first opportunity, the court holds that the evidence was admitted for all purposes. Martin next attacks the reasonableness of the state’s notice of extraneous offenses. He argues that the state’s notice, provided seven days before trial, was insufficient and unreasonable given 1) the advance request for notice, 2) the number of offenses and occurrences noticed, and 3) the more heinous nature of the noticed extraneous offense of rape. The court finds nothing in the record to indicate that Martin requested a continuance. Because he failed to do so, the court concludes that Martin has waived any complaint that he was surprised by the state’s notice. Martin then argues that the trial court erred by admitting testimony during the guilt innocence phase of the trial as to S.D.’s relationship with her fianc” at the time of trial and how it had been adversely affected by Martin’s abuse. Martin argues that S.D.’s state of mind two years later is not relevant and that the testimony presented was victim-impact material more suited for the punishment phase of the trial. The court agrees that the testimony was improperly admitted, but again finds that the error did not affect Martin’s substantial rights. Finally, Martin argues that the trial court abused its discretion by increasing his bond to $100,000 for being five minutes late on the second day of trial. But the court holds that although Martin explained the reason for his tardiness to the trial court, he did not object to the trial court’s action or complain to the trial court that the amount of his increased bail was excessive. Therefore, the court concludes that Martin failed to preserve for review any complaint that the trial court abused its discretion when it increased the amount of his bond. OPINION:McCoy, J.; McCoy, Wright and McCall, JJ.

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