Opinion
No. 2-05-430-CR
Delivered: August 3, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Criminal District Court No. 4 of Tarrant County.
Panel F: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
Appellant Byron Lawrence Graves appeals his conviction and seventy-seven year sentence for aggravated robbery. In a single point, appellant contends that the visiting trial court judge committed reversible error by overruling his objection to admission of an extraneous offense at punishment because the State did not provide him notice that it would introduce that offense into evidence, as required by article 37.07, section 3(g) of the code of criminal procedure. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (Vernon Supp. 2005). We reverse and remand for a new trial on punishment.
Factual and Procedural Background
The State charged appellant in case number 0799290D — the instant case — with the offense of aggravated robbery and in case number 0799500D with the offense of aggravated sexual assault. The clerk's record in cause number 0799290D contains a letter from appellant's counsel indicating that he was representing appellant in several case numbers, including numbers 0799290D and 0799500D. On June 10, 2002, appellant's counsel sent a letter to the State, which was filed with the trial court clerk on June 11, 2002, asking the State to notify him pursuant to article 37.07, section 3(g) of its "intent to introduce into evidence during the punishment phase of the above captioned case [which appellant's counsel referred to only as State of Texas v. Byron L. Graves] any evidence of other crimes, wrongs, or acts other than those arising in the same transaction alleged to have been committed by" appellant. Nine months later, on March 11, 2003, the State filed a notice under penal code section 3.02 of its intent to consolidate and join numbers 0799290D and 0799500D for trial. TEX. PENAL CODE ANN. § 3.02 (Vernon 2003). However, at a pretrial hearing two days later on March 13, 2003, appellant's counsel moved to sever numbers 0799290D and 0799500D, and the trial court granted his motion. The trial court then discussed scheduling trial on number 0799500D, the aggravated sexual assault trial. At another pretrial hearing on March 20, 2003, the State informed the trial court that the DNA results in number 0799500D would have to be retested; thus, the State announced that it was ready for trial on number 0799290D, the aggravated robbery. Appellant's counsel announced that he was ready to proceed to trial on the aggravated sexual assault but not the aggravated robbery; however, he agreed to the postponement of the aggravated sexual assault trial. He then asked for a continuance on number 0799290D, the aggravated robbery. The trial court gave appellant two additional days to prepare for trial on the aggravated robbery, which was to start the next week. That same day, March 20, 2003, the State responded to appellant's request for notice of extraneous offenses as to number 0799290D and listed seven extraneous offenses that it intended to introduce into evidence pursuant to article 37.07, section 3(g) and rule of evidence 404(b). The aggravated sexual assault charged in number 0799500D was not listed in the State's notice. A jury subsequently convicted appellant of aggravated robbery. At the punishment phase of that trial, the State called as a witness the complainant in number 0799500D, the aggravated sexual assault case. Appellant objected on the ground that the State never gave notice of its intent to introduce evidence of the aggravated sexual assault in response to appellant's request, as required by article 37.07, section 3(g). The State responded that the aggravated sexual assault was part of the same criminal episode and that appellant could not have been surprised in that appellant's counsel had known about the aggravated sexual assault charge for over two years because he was representing appellant in several cases, including the aggravated sexual assault case. The trial court overruled appellant's objection and admitted the evidence but granted appellant a running objection to evidence about the aggravated sexual assault.Analysis
Appellant's sole point is that the trial court committed reversible error by admitting evidence of the aggravated sexual assault at punishment because the State did not comply with article 37.07, section 3(g).Notice of Intent to Introduce Aggravated Sexual Assault Evidence
Article 37.07, section 3(g) provides as follows:On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act.TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (emphasis added). The purpose of article 37.07, section 3(g) is to avoid unfair surprise, that is, trial by ambush. Burling v. State, 83 S.W.3d 199, 202-03 (Tex.App.-Fort Worth 2002, pet. ref'd); Nance v. State, 946 S.W.2d 490, 493 (Tex.App.-Fort Worth 1997, pet. ref'd). The trial court's decision to admit extraneous offense evidence during punishment is reviewed for an abuse of discretion. Sanders v. State, 191 S.W.3d 272, 276 (Tex.App.-Waco 2006, pet. filed); Owens v. State, 119 S.W.3d 439, 444 (Tex.App.-Tyler 2003, no pet.); see also Brown v. State, No. 02-03-00307-CR, 2004 WL 1067774, at *1 (Tex.App.-Fort Worth May 13, 2004, no pet.) (mem. op.) (not designated for publication). However, in the absence of reasonable notice, a trial court abuses its discretion by admitting extraneous offense evidence. Roethel v. State, 80 S.W.3d 276, 283 (Tex.App.-Austin 2002, no pet.) ("Utterly failing to provide the required notice would automatically render the evidence inadmissible. . . ."); see also Owens, 119 S.W.3d at 444. Although the State does not concede that it failed to give appellant notice of its intent to introduce the extraneous offense in the aggravated robbery case, it does not argue that it did give such notice. Its brief merely recites the exchange between appellant's counsel and the prosecutor and then proceeds to argue that if this court determines that the trial court erred by admitting the evidence, there was no harm. Our review of the record shows that the State never notified appellant that it intended to introduce the aggravated sexual assault into evidence at the punishment phase of the aggravated robbery trial. After the cases were severed according to appellant's motion, the State filed a notice in number 0799290D only, listing seven specific extraneous offenses that it intended to introduce into evidence in the aggravated robbery trial. Appellant's knowledge that number 0799500D was pending is not equivalent to notice that the State intended to introduce the aggravated sexual assault into evidence. See Sarringar v. State, No. 02-02-00102-CR, 2003 WL 861698, at *4 (Tex.App.-Fort Worth Mar. 6, 2003, pet. ref'd) (mem. op.) (not designated for publication) ("Article 37.07, section 3(g) mandates that the State provide timely notice, not of the existence of extraneous offenses, but of its intent to offer such evidence."); see also Hernandez v. State, 176 S.W.3d 821, 824 (Tex.Crim.App. 2005) (holding that admissibility of extraneous offense evidence at guilt-innocence is conditioned on State's compliance with notice requirements of rule 404(b) and citing Roethel for same proposition as to article 37.07, section 3(g) notice required at punishment). Indeed, the State's omission of that extraneous offense from the enumerated list of offenses that it intended to offer in number 0799290D indicates that it did not intend to introduce evidence of the aggravated sexual assault into evidence in the aggravated robbery trial. See McDonald v. State, 179 S.W.3d 571, 577 (Tex.Crim.App. 2005) (holding same in analyzing adequacy of notice under rule 404(b)). Our inquiry does not end, however, with a determination that the State did not provide appellant with notice that it intended to introduce the aggravated sexual assault into evidence at punishment because appellant's request for notice asked for notice only of extraneous offenses "other than those arising in the same transaction" as the aggravated robbery. Thus, we must also determine whether the aggravated sexual assault and aggravated robbery arose out of the same transaction. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (requiring that State give notice only upon defendant's request); Sanders, 191 S.W.3d at 276 (holding that trial court does not abuse its discretion by admitting extraneous offense evidence when defendant fails to ask State for notice of its intent to offer such evidence). An extraneous offense occurs in the same transaction as another offense and is, thus, admissible when the offenses are "so intermixed or connected as to form a single, indivisible criminal transaction, such that in narrating the one, it is impracticable to avoid describing the other." McDonald, 179 S.W.3d at 577 (citing Rogers v. State, 853 S.W.2d 29, 33-34 (Tex.Crim.App. 1993)); see also King v. State, 189 S.W.3d 347, 354 (Tex.App.-Fort Worth 2006, no pet.) (holding that extraneous offense is same transaction contextual evidence if it is so intertwined with charged offense that full proof of either cannot be had without eliciting testimony of the other). Same transaction contextual evidence is admissible "only to the extent that it is necessary to the jury's understanding of the offense," that is, "only when the offense would make little or no sense without also bringing in the same transaction evidence." McDonald, 179 S.W.3d at 577 (quoting Wyatt v. State, 23 S.W.3d 18, 25 (Tex. 2000)). Here, the State chose to offer the aggravated sexual assault at punishment rather than guilt-innocence, which alone suggests that the aggravated sexual assault evidence was not necessary to the jury's understanding of the evidence and therefore that the aggravated sexual assault did not occur in the same transaction as the aggravated robbery. The evidence at guilt-innocence showed that around eleven p.m. on March 7, 2001, appellant furtively approached a man who was sitting inside his truck in the parking lot of a Motel 6. Appellant put a gun in the man's ribs and, while pointing the gun at the man, made him get out of the truck. Appellant then drove off in the man's truck. The police chased appellant until the truck's engine blew up and it coasted to a stop. Appellant testified that the man sold the truck to him for $1,000. In rebuttal of appellant's testimony, the trial court allowed the State to introduce evidence of several extraneous offenses and bad acts showing the events leading up to appellant's obtaining the truck. By cross-examining appellant, the State introduced evidence that on the evening of March 6, 2001, appellant had taken a gun from his friend's truck without permission and had gone to a topless club where he drank whiskey and took cocaine. Appellant left the club in the early morning hours of March 7, 2001 and sat in front of his estranged wife's apartment for four hours calling her repeatedly and drinking whiskey. Appellant testified that he left his estranged wife's apartment about ten or eleven a.m., drove to Tarrant County College to take a test, and stayed at the school until two or two-thirty p.m. According to appellant, he then checked into a Motel 6 and stayed there until five or five-thirty p.m. Appellant admitted that he then went to his estranged wife's apartment, which he broke into by tricking her into opening the door. Appellant contended that his estranged wife and her roommate then went with him voluntarily to the motel, but he also admitted that the two women rode in the front seat, and he sat in the back seat with the gun. Appellant and his estranged wife stayed in the motel room for about four or four-and-a-half hours. At some point during that time, appellant let the roommate leave with the truck that they drove to the motel in. After appellant received a phone call from a friend that appellant's face was "all over" the news and that the police were looking for him, appellant left the motel room and approached the man whom the State alleged appellant robbed. At punishment, the State elicited testimony from the aggravated sexual assault complainant that around twelve-thirty p.m. on March 7, 2001, appellant abducted her at gunpoint from the Tarrant County College parking lot and made her drive to a vacant house where he sexually assaulted her. The complainant's testimony about the timing of the abduction and assault corresponds with appellant's prior testimony that he had been at Tarrant County College from about ten or eleven a.m. until two or two-thirty p.m. Although the aggravated sexual assault took place during the same twenty-four hour period as the aggravated robbery and appeared to be part of a crime spree by appellant while he was drinking and taking drugs, it occurred at a separate location, about ten hours before the aggravated robbery, and was otherwise unrelated to it. Evidence of the aggravated sexual assault is not necessary to explain the events surrounding the aggravated robbery. And although the State was able to offer evidence of other extraneous crimes at guilt-innocence to explain appellant's motive for stealing the truck rather than buying it, evidence of the aggravated sexual assault was not necessary to that explanation either and had not been admitted. Thus, we conclude and hold that the aggravated sexual assault did not occur in the same transaction as the charged aggravated robbery. Accordingly, we conclude and hold that the trial court abused its discretion by admitting evidence of the aggravated sexual assault at the punishment phase of appellant's aggravated robbery trial.
Harm Analysis
Having determined that the trial court abused its discretion by admitting evidence of the aggravated sexual assault, we must next determine whether the error was harmful. TEX. R. APP. P. 44.2. Error in admitting evidence due to insufficient notice under article 37.07, section 3(g) is nonconstitutional error. Brown, 2004 WL 1067774, at *2; Apolinar v. State, 106 S.W.3d 407, 414 (Tex.App.-Houston [1st Dist.] 2003), aff'd, 155 S.W.3d 184 (Tex.Crim.App. 2005); Roethel, 80 S.W.3d at 281; see McDonald, 179 S.W.3d at 578 (reviewing harm for failure to give notice under rule 404(b) in accordance with rule 44.2(b)); Hernandez, 176 S.W.3d at 824-25 (analyzing harm in failure to provide 404(b) notice under rule 44.2(b) and "find[ing] helpful" the article 37.07, section 3(g) test for harm set forth in Roethel). Therefore, we apply rule 44.2(b) and disregard the error if it did not affect appellant's substantial rights. TEX. R. APP. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070 (1999); Coggeshall v. State, 961 S.W.2d 639, 642-43 (Tex.App.-Fort Worth 1998, pet. ref'd). To determine harm in light of the purpose of article 37.07, section 3(g) — to avoid unfair surprise and enable the defendant to prepare to answer the extraneous offense evidence — we must analyze whether and how the notice deficiency affected appellant's ability to prepare for the evidence. Brown, 2004 WL 1067774, at *2; Apolinar, 106 S.W.3d at 414; Roethel, 80 S.W.3d at 281-82. The Austin Court of Appeals has articulated the following test in Roethel:[W]e will examine the record to determine whether the deficient notice resulted from prosecutorial bad faith or prevented the defendant from preparing for trial. In determining the latter, we will look at whether the defendant was surprised by the substance of the testimony and whether that affected his ability to prepare cross-examination or mitigating evidence.80 S.W.3d at 282. We agree with the Austin Court of Appeals's reasoning and will follow the same test in assessing harm in this case. See Brown, 2004 WL 1067774, at * 2; Apolinar, 106 S.W.3d at 414-15 (adopting same test in article 37.07, section 3(g) case). Here, there is evidence that the lack of notice affected appellant's ability to cross-examine the aggravated sexual assault complainant and his ability to provide mitigating evidence. Although appellant indicated at the March 20 pretrial hearing that he was prepared to go forward on the aggravated sexual assault case, the State and appellant both agreed to postpone that trial for the purpose of having the DNA retested. The complainant in the aggravated sexual assault case testified extensively at punishment in the instant case. The trial court granted appellant a running objection to her testimony. During a break in her testimony, appellant's counsel told the trial court that
in light of the circumstances here, first of all, based on my conversations with the State, it's my understanding that they weren't gonna go near this case in this trial. Now that that's changed, I am not prepared to conduct an intelligent and effective cross-examination of this witness. And as such, when the State passes the witness, I will request from the Court that I be allowed to pass the witness for cross-examination at a later time after I've secured my files and my notes.The State objected to appellant's request for extra time because the complainant would have to come back the next day and because "he's [appellant's counsel] been hired on this case for two years. And we were set to try this case but for our DNA three days out." The State also contended that appellant's counsel would have adequate time (approximately fifty-two minutes) to look over the complainant's witness statement before cross-examining her. The trial court denied appellant's request. Thereafter, appellant conducted an extremely brief cross-examination of the complainant consisting of only three questions: "Ma'am, are you aware of the problems that the State's having with the DNA testing in this case?," "When did they inform you of that?," and "When did they tell you about the problems with the DNA?" It is clear that DNA was an important issue in the aggravated sexual assault case and that appellant and the State were both waiting on the results of the DNA retest, which is why they agreed to postpone trial on the aggravated sexual assault. Although the complainant testified in detail about the aggravated sexual assault at punishment in the aggravated robbery trial, and although she had no trouble identifying appellant in the courtroom, the retested DNA results could have made a significant impact on her testimony — either in favor of the State or appellant, depending on the results. Furthermore, although there is no direct evidence of any bad faith on the part of the prosecutor, it is also apparent that the State was frustrated by its inability to try the aggravated sexual assault case first. In arguing the admissibility of the aggravated sexual assault evidence, the prosecutor stated,
The case we want to try, the one we really wanted to try was this case, the rape of the girl off the campus. And that's what we prepared for, that's what everybody went forward for.
So we didn't list it on our original notices, no, because, Judge, that's the case we were going to try. We got Shanghai'd three days out by the postponement from the lab. So we have to switch yet to another case. And for him to say, oh, wait a minute, you've got to turn around and tell me an offense committed in the same criminal episode I've got to give you notice of, that would be absolutely ridiculous.Later, the prosecutor stated,
We were trying this case all the time for the last eight months, up until we got hijacked three days ago. This — the case I'm interested in using in punishment right now is the aggravated sexual assault case that he and I have been discussing since last June. That's exactly what we were gonna try. . . .We cannot tell from the record whether the State intentionally omitted the aggravated sexual assault from its notice to appellant in bad faith, whether the omission was an accident, or whether the State simply decided not to give notice of intent to introduce the aggravated sexual assault into evidence in a good faith belief that such notice was not necessary. However, we do know that the State gave appellant his notice of extraneous offenses on the same day it discovered that it would not be able to proceed with its prosecution of the aggravated sexual assault case due to the DNA glitch. But the fact that the State failed to give appellant notice of its intent to introduce the aggravated sexual assault into evidence at punishment in the instant case, in light of the State's knowledge that it might have problems with the DNA in that case because it was being retested and the State's admission that the aggravated sexual assault case was the one it was the most interested in, is some evidence that the State acted in bad faith by failing to give the required notice. In its brief, the State contends that "it strains credulity" to conclude that appellant was surprised by its offer of the aggravated sexual assault at the punishment phase because appellant's counsel was representing him on that charge and it had been pending for over two years. But as we noted above, appellant's knowledge that the charge was outstanding is hardly equivalent to knowledge that the State would offer evidence of it at punishment on the aggravated robbery, especially when the DNA, an important component of the State's case — as evidenced by its postponement of trial for retesting of the DNA — was apparently in question. And appellant's counsel made his surprise clear on the record. Furthermore, we note that although the prosecutors did not overly emphasize the aggravated sexual assault in their closing arguments, evidence of the aggravated sexual assault made up the bulk of the State's evidence at punishment. Based on the foregoing, we cannot conclude that the trial court's error did not affect appellant's substantial rights. See TEX. R. APP. P. 44.2(b). Accordingly, we sustain appellant's sole point.