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Click here for the full text of this decision FACTS:The state’s indictment charged Jerry Lee Pedersen with two separate counts of indecency with a child. The first count of the indictment alleged that Pedersen “intentionally or knowingly, with the intent to arouse or gratify the sexual desire of said defendant, engage[d] in sexual contact by touching the breast of [L.P.], a child younger than 17 years and not the spouse of the defendant.” The second count of the indictment alleged Pedersen “intentionally or knowingly, with the intent to arouse or gratify the sexual desire of said defendant, engage[d] in sexual contact by causing his penis to touch [L.P.], a child younger than 17 years and not the spouse of the defendant.” The evidence showed the following: L.P. had just turned 17 years old one month prior to the trial in this case. L.P. testified that in the spring of 2002, when she was about 12 years old, she had gone to visit Pedersen during a period when he had custody of her pursuant to a divorce decree. At night before bedtime, Pedersen would typically rock L.P. to sleep in a rocking chair before later carrying her to her bed. L.P. wore a T-shirt and shorts to sleep in. On at least one occasion (possibly more) during this spring 2002 visit, Pedersen came into the bedroom where L.P. was, laid down behind her in the bed, draped his arm across her body, placed his hand on top of her T-shirt, and rubbed her breast area. L.P. testified that on other occasions, Pedersen reached underneath her shorts to rub the area underneath her underwear. Then, according to L.P., “He [Pedersen] would hump me.” L.P. explained that by using the term “humping,” she meant that Pedersen would move his hip area back and forth against her buttocks. During this “humping,” she could feel Pedersen’s erect penis as it rubbed against her through the various layers of clothing that otherwise separated the two. These events occurred at Pedersen’s house in Paris, Texas. L.P. testified that these contacts by Pedersen were not merely accidental, “It was more than that.” A jury found Pedersen guilty of two counts of indecency with a child and assessed his punishment at 20 years of imprisonment for both counts. HOLDING:Reversed and remanded. In his fifth and sixth points of error, Pedersen contended that the trial court erred by failing to require the state to make an election among the various alleged offenses. He further asserted that insufficient evidence supported the jury’s verdicts of guilt. In this case, the court found that Pedersen did not ask the state to make such an election. Therefore, Pedersen did not preserve for appellate review the issue of whether the trial court erred by not directing the state to make an election in this case. The court found that, viewed in the light most favorable to the jury’s verdict, L.P.’s testimony provided evidence establishing the essential elements of indecency under Texas Penal Code �21.11. Therefore, the court found that legally sufficient evidence supported the jury’s verdict. In his third point of error, Pedersen contended that the trial court erred by denying his request for an oral limiting instruction to the jury, which would have served to narrow the parameters under which the jury would properly be permitted to consider evidence concerning an extraneous offense committed by Pedersen. The testimony at issue, the court stated, came from Susan Dearinger, who was the state’s first witness during the guilt/innocence phase of trial. Dearinger, the court stated, told the jury that Pedersen had previously pleaded guilty to and been placed on community supervision for the crime of molesting his older daughter, M.L. The court noted that at the first mention of the allegation that he molested M.L., Pedersen objected. The court ruled that the incident was admissible, because it appeared to have been proven beyond a reasonable doubt. Pedersen requested and was granted a running objection to any evidence of extraneous offenses. After having received the running objection, Pedersen requested a limiting instruction be provided to the jury at the time of the admission of evidence regarding extraneous offenses. A defendant, the court stated, is entitled to such an instruction limiting the jury’s use of an extraneous offense not only in the jury charge but also at the time the evidence is admitted, if such an instruction is timely requested by the accused. The failure to give such an instruction at the time the evidence is admitted, the court stated, is error when such an instruction has been requested. The court noted that at trial, the state theorized that no limiting instruction was required in this case “because the evidence [of the extraneous offense] was admitted to rebut appellant’s unlimited defensive theory and was contextual evidence in light of Pedersen’s defensive strategy.” But the court found that the state’s argument, while relevant to a question relating to the admission of extraneous offense evidence, did nothing to address the proper scope of consideration that a jury may have of such evidence. Thus, the court concluded that the lower court in this case erred when it denied Pedersen’s request for the limiting instruction. The court then did a harm analysis. The jury’s unlimited ability to consider the extraneous offense evidence, the court stated, clearly permeated the trial. “A casual observer might go so far as to say this trial was as much about the extraneous offense as it was the charged offenses.” Reviewing of the entire record of the guilt/innocence phase of the trial, “when taking into account the fact that this extraneous offense evidence was admitted at the very earliest stages of the trial on guilt/innocence, when considering the substantial portion of the record devoted to questioning the witnesses about this extraneous offense, and when factoring in the length of time the jury had unfettered discretion to compare this extraneous offense evidence to L.P.’s accusations of molestation before receiving the trial court’s written jury charge,” the court could not say with fair assurance that the trial court’s error did not influence the jury’s verdict or had but slight effect in this trial. It therefore concluded that the trial court’s error injured Pedersen’s substantial rights. OPINION:Moseley, J.; Morriss, C.J., and Carter and Moseley, JJ.

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