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Click here for the full text of this decision FACTS:David John Bessey faced charges of aggravated sexual assault of a child and injury to a child. The trial court initially entered not guilty pleas to the charges, but Bessey changed his plea to “guilty” once the jury was sworn and empaneled. The trial court accepted Bessey’s pleas, and the issue of punishment was submitted to the jury. The testimony from the suppression hearing revealed Bessey’s estranged wife, Virginia Bessey, had found “some additional tapes at her home in Camp Joy . . . .” These videotapes showed Bessey molesting several different children, including some of the victims in this case. Virginia contacted Upshur County Sheriff’s Deputy Roxanne Warren regarding these videotapes and turned them over to Warren. However, when Virginia found the videotapes, she had not been living at the house; she had only been returning periodically to feed the dogs. Before obtaining the videotapes from Virginia, Warren did not first obtain a search warrant. HOLDING:Affirmed. The state presented evidence in the trial court suggesting Virginia, who was still Bessey’s legal wife, already had access to the home and had been feeding animals that were there. Bessey and Virginia still shared bills and other expenses, though Virginia apparently had constructive custody of the couple’s children and lived elsewhere. Virginia had a key to the home, and, according to Warren, Virginia said she also had the owner’s permission to be in the home. Bessey presented no evidence that either he or the homeowner had imposed (or attempted to impose) any limits on Virginia’s access to “her” home during this time in question. “We are, therefore, left with the reasonable assumption that her access to the entire house was unfettered.” Before finding the videotapes, Virginia had not been told by Warren to notify him if any evidence turned up in the house. Virginia had a right to be in the home: she had a key, she had permission from the homeowner, and her access was unrestricted. “In light of these facts, as well as the dearth of evidence regarding any pre-existing agreement between Virginia and any state official to act as an agent of the State, we are unpersuaded by Bessey’s argument that Virginia was acting as an agent of the State.” The trial court properly concluded the Fourth Amendment’s prohibition against warrantless searches does not serve to exclude the videotapes at issue. Before accepting Bessey’s plea, the trial court admonished him regarding the available punishment range for each offense being tried. The trial court did not administer the remaining admonishments required by Texas Code of Criminal Procedure Article 26.13. Therefore, the trial court erred by failing to comply with the requirements of Article 26.13. Such error must, however, be preserved in the trial court by raising an objection. Rhea v. State, 181 S.W.3d 478 (Tex. App. – Texarkana 2005, pet. ref’d). Bessey lodged no objection during trial that the trial court had failed to fully comply with Article 26.13. And, unlike Rhea, Bessey did not raise this issue in his motion for new trial. Accordingly, Bessey has not preserved this issue for review. it is clear the trial court erred by suggesting Bessey’s good conduct time would count toward his parole eligibility. Bessey did not object to the erroneous instruction at trial. He must, therefore, demonstrate egregious harm on appeal. Bessey fails to do so. A maximum sentence is not, ipso facto, egregious harm. Moreover, the jury was specifically instructed not to consider how parole law or good conduct time might be applied to Bessey. There is nothing in the record to suggest the jury considered how parole or good conduct time might apply to Bessey. Bessey contends, in his fourth point of error, that the state made an improper jury argument regarding parole. The court notes that the State specifically reminded the jury that it could not, and should not, attempt to calculate what portion of a sentence Bessey might actually serve. This statement by the state, when combined with the trial court’s written instruction that the jury was not to consider what effect parole law might have on Bessey’s sentence, should have been sufficient to cure any alleged error in the state’s closing summation. The court cannot say the state’s argument in this case rises to the level of egregious harm. Bessey’s failure to object to any alleged improper argument failed to preserve the alleged error. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, J.J.

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