Opinion
No. 04-04-00156-CR
Delivered and Filed: January 12, 2005. DO NOT PUBLISH.
Appeal from the 216th Judicial District Court, Bandera County, Texas, Trial Court No. 3532-03, Honorable Stephen B. Ables, Judge Presiding. Reversed and Remanded.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice and Phylis SPEEDLIN, Justice.
MEMORANDUM OPINION
After waiving a trial by jury, defendant, John Joseph Lathrop, entered a plea of guilty to the offense of sexual assault and elected to have the trial court assess punishment. The trial court assessed punishment at twenty years confinement and a fine of $1000. On appeal, defendant argues that the trial court erred in admitting undisclosed extraneous offense evidence through undisclosed witnesses and that such error was harmful. We agree and reverse and remand for a new trial on punishment.
BACKGROUND
Prior to entering his plea of guilty, defendant filed numerous pre-trial motions, including a Motion to Disclose the Existence of Extraneous Offenses and a Motion to List State's Witnesses, both of which were granted by the trial court. As a result, the State was ordered to provide the names of witnesses it intended to call at the guilt/innocence stage of trial and at the punishment phase of trial at least ten days before trial. Additionally, in a letter addressed to the State dated June 24, 2003, the defendant requested A[a] list of any other crimes, wrongful acts, which you contend were committed by the accused and you intend to offer into evidence in the trial of this cause for whatever purpose. Texas Rules of Evidence 404(b).@ (Emphasis added). The State did not respond to the letter or comply with either court order. When the State called its first witness at the punishment phase of the trial, the defendant objected to any witnesses being called to testify because no witnesses had been disclosed. At that point, the State named the witnesses it intended to call and, over defendant's objection, the court allowed them to testify. Both witnesses testified to other acts of child molestation.EXTRANEOUS OFFENSE EVIDENCE AND UNDISCLOSED WITNESSES
Defendant asserts the trial court erred in allowing the State to present evidence of extraneous offenses through the admission of a pre-sentence investigation report (APSI@) and the testimony of undisclosed witnesses because the State did not give him notice of its intent to introduce such evidence during the punishment phase. The Code of Criminal Procedure states: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 Criminal 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 a 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. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.Tex. Code Crim. Proc. Ann. art. 37.07'3(g) (Vernon Supp. 2004). A trial court's rulings as to the admissibility of extraneous offense evidence are reviewed under an abuse of discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996). In order to trigger the State's obligation under article 37.07, a defendant must either (1) serve the State with a request for notice, or (2) file a discovery motion requesting the court to order such notice and secure a ruling thereon. Henderson v. State, 29 S.W.3d 616, 625 (Tex.App.CHouston [1st Dist.] 2000, pet. ref'd) (citing Mitchell v. State, 982 S.W.2d 425, 427 (Tex.Crim.App. 1998); Hartson v. State, 59 S.W.3d 780, 787 (Tex.App.CTexarkana 2001, no pet.) (stating self-executing request triggers Article 37.07 notice requirement); see also Espinosa v. State, 853 S.W.2d 36, 38-39 (Tex.Crim.App. 1993) (examining the notice requirements under Texas Rule of Evidence 404). The purpose of the notice requirement is to avoid unfair surprise and trial by ambush. Nance v. State, 946 S.W.2d 490, 493 (Tex.App.CForth Worth 1997, writ ref'd). The State argues the June 2003 letter addresses only Rule 404(b) and therefore does not constitute a request under article 37.07. The State cites Waltmon v. State, 76 S.W.3d 148, 155 (Tex.App.C Beaumont 2002, no pet.), for the proposition that any attempt to equate Rule 404 and Article 37.07 fails because of the differing nature of the guilt/innocence phase and the punishment phase. However, the State's reliance on Waltmon is misplaced. The Waltmon court recognized the difference between Rule 404 and article 37.07 in the context of a challenge to the content and quality of information contained in the State's notice. Id. In Waltmon, the issue was whether article 37.07's notice requirement applied to the complained of evidence. Id. at 153-54. Here, the issue is whether defendant sufficiently requested notice from the State, pursuant to article 37.07. Because the letter was directed to the State and asks for notice of intent to offer extraneous offenses into evidence Afor whatever purpose,@ we construe the letter as a sufficient article 37.07 request. See Henderson, 29 S.W.3d at 625 (holding the following language in a letter directed to the State sufficient: A[p]ursuant to the dictates of Rule 404(b) of the Texas Rules of Criminal Evidence, Defendant Henderson hereby requests notice in advance of trial of the State's intention to introduce suchother crimes' evidence in its case in chief, and a disclosure of that evidence@). Therefore, the State was required to give notice of its intent to introduce extraneous evidence prior to the punishment phase of trial. We next consider whether the trial court erred in admitting the PSI and the testimony of the State's witnesses despite the State's failure to provide defendant with the required notice. When a judge assesses punishment, he may order a PSI report and, Aafter considering the report, and after the hearing of the evidence . . . he shall forthwith announce his sentence in open court.@ Tex. Code. Crim. Proc. Ann. art. 37.07'3(d) (Vernon Supp. 2004). Here, the trial court ordered the PSI, not the State. Although the admitted PSI report notes defendant has no criminal history, it references Aoffenses pending in Corpus Christi@ and Aanother offense out there that the defendant denies doing.@ The PSI does not discuss any details regarding these extraneous offenses. Because the Rules of Evidence do not apply to a PSI report, a trial court may consider evidence included in the PSI that could not have been otherwise introduced at the punishment stage due to its subject matter, such as an arrest record or a pending indictment. Fryer v. State, 68 S.W.3d 628, 631 (Tex.Crim.App. 2002) (citing Clay v. State, 518 S.W.2d 550, 555 (Tex.Crim.App. 1975)). Therefore, the trial court did not err in admitting the PSI. Defendant next contends the trial court erred by admitting testimony from previously undisclosed punishment phase witnesses who offered testimony regarding admissions he made concerning this offense, as well as allegations of extraneous offenses involving other sexual assaults. On appeal, the State contends it was Arequired@ to provide the names of its witnesses before voir dire. According to the State, because no voir dire occurred, it timely provided its witness list by submitting the names to defendant at the beginning of the punishment phase. Therefore, the State concludes the trial court did not err in allowing the witnesses to testify about the extraneous offenses. We disagree. The defendant filed a pre-trial motion which requested that the State list all the State's witnesses Ain good faith . . . both during the guilt or innocence stage and the punishment stage . . . at least ten days before trial.@) (Emphasis added). The motion was granted and the trial court issued a corresponding order. We hold that the State's verbally telling defendant the names of its witnesses immediately before their testimony was untimely. Rodgers v. State, 111 S.W.3d 236, 245 (Tex.App.CTexarkana 2003, no pet.) (holding State's notice of intent to call witnesses the morning of punishment hearing as untimely). Therefore, the trial court erred in allowing these witnesses to testify about the extraneous offenses. See e.g. Roethel v. State, 80 S.W.3d 276, 281 (Tex.App.BAustin 2002, no pet.) (stating the logical result of failing to give reasonable notice pursuant to article 37.07, section 3(g) is exclusion of evidence). Finding error, we must next determine whether the error was harmful. Johnson v. State, 43 S.W.3d 1, 3-4 (Tex.Crim.App. 2001) (reviewing court must analyze error for harm); Tex.R.App.P. 44.2. The erroneous admission of extraneous offense evidence does not constitute constitutional error. See Avila v. State, 18 S.W.3d 736, 741-42 (Tex.App.CSan Antonio 2000, no pet.). Texas Rule of Appellate Procedure 44.2(b) provides that any error other than constitutional error Athat does not affect substantial rights must be disregarded.@ Tex.R.App.P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the trial court's sentencing decision. See Brooks v. State, 76 S.W.3d 426, 435 (Tex.App.CHouston [14th Dist.] 2002, no pet.); Patton v. State, 25 S.W.3d 387, 394 (Tex.App.CAustin 2000, pet. ref'd). The State called three witnesses during the punishment phase, all of whom testified about the extraneous offenses, which included child molestation. The first witness was the defendant's wife, who testified that she tape recorded a conversation she had with the defendant regarding this offense as well as the extraneous offenses in Corpus Christi. The tape was admitted into evidence over defendant's objection and played in open court. The recorded conversation includes a discussion in which the defendant's wife details the extraneous offenses in Corpus Christi. Defendant's wife further testified that defendant allegedly abused her daughter when she was a young child. The second witness, the victim's mother, testified in detail regarding the impact this offense has had on her daughter. She also revealed that the indictment in Corpus Christi involved defendant's alleged molestation of her younger daughter. The last witness called by the State was the probation officer who prepared the PSI. The trial court instructed the State that any elaboration or discussion outside the PSI would be hearsay. The probation officer testified that the two cases pending in Corpus Christi were Afor the same offense.@ During closing argument, the State argued that in the past, defendant had been inconsistent in remembering whether the extraneous offenses alleged to have occurred in Corpus Christi did, in fact, actually occur. The State asserted the defendant then conveniently acquired a clear recollection during trial that the extraneous offenses did not occur and the victims in Corpus Christi were lying. The State asked for the maximum sentence, arguing that all the victims would carry the effect of what defendant had done to them for the rest of their lives. In the absence of the witnesses= testimony, the only evidence before the trial court would have been the evidence of this offense and the reference in the PSI to other offenses pending in another city. Because the court erred in allowing the witnesses to testify, these other offenses gained substance as other incidents of child abuse, and provided the basis for the State's argument regarding defendant's propensity to commit child abuse. We conclude that the improperly admitted testimony regarding the extraneous offenses likely had an injurious effect on the trial court's sentencing decision. See James v. State, 47 S.W.3d 710, 714-15 (Tex.App.CTexarkana 2001, no pet.). Therefore, we sustain defendant's issue on appeal.