Carlos Eugeno Serrano v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-22-00393-CR

CARLOS EUGENO SERRANO,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 52nd District Court
Coryell County, Texas
Trial Court No. 21-26567

CONCURRENCE

The sole issue in this appeal is whether the trial court committed reversible error

by including a limiting instruction in the jury charge when one was not requested or

given at the time that the extraneous offense evidence was admitted. We have addressed

this issue before. This is what we said:

A trial judge must—without any request or objections from the parties—
prepare a charge that accurately sets out the law applicable to the charged
offense. See Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007);
TEX. CODE CRIM. PROC. art. 36.14. The trial court is not required to include
a limiting instruction in the jury charge when no instruction was requested
at the time the evidence was admitted. Delgado, 235 S.W.3d at 254. Steggall
did not request a limiting instruction pursuant to Rule 404(b) of the Rules
of Evidence at the time that evidence of possible extraneous offenses was
admitted; thus, this evidence was admissible for all purposes. See id. But
Steggall has not cited, nor have we found, any cases holding that a trial
court is prohibited from including a limiting instruction in such a situation.

Instead, the Court of Criminal Appeals long ago considered and rejected an
argument that the trial court reversibly erred by including a limiting
instruction regarding extraneous offenses in the jury charge over the
appellant's objection in Fair v. State. See Fair v. State, 465 S.W.2d 753, 754
(Tex. Crim. App. 1971). In Fair, the Court determined that the included
instruction, although not required, "was not harmful but beneficial to the
appellant" and it was not reversible error to instruct the jury that it could
consider the extraneous offense for a limited purpose over the defendant's
objection. Fair, 465 S.W.2d at 755.

In short, the Court of Criminal Appeals has held that an extraneous-offense
limiting instruction is beneficial to a defendant, and a trial judge does not
commit reversible error by including such instruction in the jury charge. As
such, the inclusion of this instruction was not reversible error. See Fair, 465
S.W.2d at 755.

Steggall v. State, No. 10-17-00017-CR, 2018 Tex. App. LEXIS 6228, *3-4 (Tex. App.—Waco

Aug. 8, 2018, pet. ref’d).

I would respectfully say it again just like that and thus avoid the characterization

of the trial court’s extraneous offense instruction as proper or criticize it as being

superfluous. I concur in the Court’s judgment.

TOM GRAY
Chief Justice

Concurrence delivered and filed August 30, 2023
Do not publish

Serrano v. State Page 2