Opinion
No. 04-14-00761-CR
03-23-2016
David CHARLES, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR5564
Honorable Lori I. Valenzuela, Judge Presiding Opinion by: Jason Pulliam, Justice Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice AFFIRMED
A jury convicted David Charles of seven counts of the offense indecency with a child and four counts of the offense sexual assault of a child. The basis of Charles' arguments on appeal is the trial court erred by admitting testimony regarding alleged extraneous offenses offered pursuant to Article 38.37 of the Texas Code of Criminal Procedure. The judgment of the trial court is affirmed.
BACKGROUND
In July 2012, Charles was indicted for the following offenses in a single indictment naming two complainants: one count of the offense aggravated sexual assault, four counts of the offense sexual assault of a child, and seven counts of the offense indecency with a child. On October 14, 2013, the State filed its Second Amended Notice of Intent in which it gave Charles notice it intended to offer evidence of alleged extraneous offenses pursuant to Texas Code of Criminal Procedure Article 38.37 "as amended effective Sept. 1, 1995." In Section III, Nos. 8 and 9 of the notice, the State listed thirteen crimes, wrongs, or acts Charles allegedly committed against an alleged additional victim, V.D.
Eight months later, on June 13, 2014, the Friday before the Monday on which jury selection was to begin, the State notified the trial court it intended to present testimony from eight witnesses. V.D. was included on the list, as well as on the list of thirteen lay witnesses the State previously provided Charles. During a discussion of pre-trial matters on the second day of trial, the State referred to the October 2013 notice and reminded the trial court of the changes in Article 38.37, which required a hearing outside the jury's presence regarding the testimony of any possible additional victim. The State pointed out it included the information regarding V.D's testimony in its October 2013 notice. The trial court indicated it would hold the hearing prior to V.D. taking the stand.
The State notified the trial court of its intention to present V.D.'s testimony the following day, and the trial court held a hearing as required by Article 38.37, section 2-a ("admissibility hearing") to determine whether the evidence would be sufficient to support a jury finding that Charles committed the alleged extraneous offenses against V.D. beyond a reasonable doubt. See TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2-a (as amended September 1, 2013). Charles cross- examined V.D. and lodged several objections to the admission of her testimony. The trial court admitted V.D.'s testimony over Charles's objections.
The jury found Charles not guilty of the offense of aggravated sexual assault, but found him guilty of the remaining eleven counts of the offenses indecency with a child and sexual assault of a child. Charles elected for the trial court to assess punishment, and the trial court sentenced Charles to eleven concurrent twenty-year terms of imprisonment. Charles timely filed a motion for new trial, and the trial court held a hearing on October 14, 2014. Following argument from both parties, the trial court denied Charles's request for a new trial. Charles subsequently perfected this appeal.
DISCUSSION
In his first three issues on appeal, Charles contends the trial court erred by admitting V.D.'s testimony pursuant to Texas Code of Criminal Procedure Article 38.37. In the first two issues, Charles presents progressive arguments pertaining to the degree of harm caused by the trial court's erroneous admission of these alleged extraneous offenses. First, Charles argues the erroneous admission of evidence resulted in structural and fundamental error, and thus, was automatically reversible error. Alternatively, Charles argues this erroneous admission of evidence resulted in constitutional error, and as a result, contributed to his conviction. Finally, Charles argues the trial court abused its discretion by admitting V.D.'s testimony. In his fourth issue, based upon his contention that V.D.'s testimony was inadmissible, Charles contends the trial court erred by instructing the jury to consider V.D.'s testimony pursuant to Article 38.37.
Charles contends the trial court erroneously admitted V.D.'s testimony alleging extraneous sexual offenses because the State did not provide the required 30-day notice of its intention to use that evidence. Although Charles acknowledges the State provided notice eight months before trial of its intent to use evidence of extraneous bad acts committed against V.D., Charles complains this notice stated the evidence would be offered under Rule of Evidence 404(b) and Article 37.07, subsection 3(g) and Article 38.37 of the Code of Criminal Procedure, as amended in 1995. Instead, the State introduced V.D.'s testimony of extraneous offenses under the 2013 version of Article 38.37. Charles contends the State provided notice of application of the 2013 version only three days prior to trial, and therefore, did not comply with the strict 30-day notice requirement within the 2013 version. Charles complains of no other deficiency in the State's notice, either substantive or procedural, other than the incorrect statement of the version utilized.
To begin, Charles's first two issues on appeal pertain to the harm analysis to be applied in the event a trial court's error resulted in structural, fundamental, or constitutional error. These arguments are premature and presumptive. This court must first analyze and determine whether the trial court committed error by admitting V.D.'s testimony of alleged extraneous offenses based upon Charles's contention that the State provided untimely notice. If this court determines error occurred, it will then proceed to the appropriate harm analysis presented in Charles' issues one and two.
Issue Three: Whether the Trial Court Abused Its Discretion by Admitting V.D.'s Testimony
Standard of Review
"[A] trial court's ruling on the admissibility of extraneous offenses is reviewed under an abuse-of-discretion standard." Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). "A trial court does not abuse its discretion if its decision falls within the 'zone of reasonable disagreement.'" Beam v. State, 447 S.W.3d 401, 403 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g)). "If the trial court's decision on the admission of evidence is supported by the record, there is no abuse of discretion, and the trial court will not be reversed." Marsh v. State, 343 S.W.3d 475, 478 (Tex. App.—Texarkana 2011, pet. ref'd). A reviewing court should not substitute its judgment for that of the trial court. Id.
Applicable Law
Charles's argument pertains to application of the different versions of the Texas Code of Criminal Procedure Article 38.37, as amended during the pendency of the investigation and pre-trial proceedings. See TEX. CODE CRIM. PROC. ANN. art. 38.37 (West Supp. 2015). Both the 1995 and 2013 versions provide, notwithstanding Rules of Evidence 404 and 405, for certain offenses:
[E]vidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child.Id. art. 38.37, § 1(a)(1)(B), (b). In the 2013 amendment, the legislature added a provision stating, notwithstanding Rules of Evidence 404 and 405:
[E]vidence that the defendant has committed a separate offense described by Subsection (a)(1) or (2) may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.Id. art. 38.37, § 2(a)(1)(E), (b). The 2013 amendment also added the requirements the State "shall give the defendant notice of the State's intent to introduce" the evidence in the case in chief; "not later than the 30th day before the date of the defendant's trial", and; before this type of evidence is admitted, the trial court must "conduct a hearing out of the presence of the jury" for the purpose of determining whether "the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt." Id. art. 38.37, §§ 2-a, 3. The 1995 version of Article 38.37 only required the State to provide notice regarding its intention to use evidence concerning extraneous offenses committed by the defendant if the defendant requested notice. See Act of May 28, 1995, 74th Leg., R.S., ch. 318, § 48, 1995 Tex. Gen. Laws 2734, 2748-49, amended by Act of May 24, 2005, 79th Leg., R.S., ch. 728, § 4.004, 2005 Tex. Gen. Laws 2188, 2192, amended by Act of April 7, 2011, 82d Leg., R.S., ch. 1, § 2.08, 2011 Tex. Gen. Laws 1, 6 (current version at TEX. CODE CRIM. PROC. art. 38.37 (West Supp. 2015)).
The statutory note of the 2013 amendment stated the updated version of Article 38.37 applied to any criminal proceeding commenced after the effective date, September 1, 2013, regardless whether the subject offense was committed before the effective date. TEX. CODE CRIM. PROC. ANN. art. 38.37, Statutory Note (West Supp. 2015) [Section 2 of Acts 2013, 83d Leg., ch 387 (S.B. 12)]. The purpose of requiring the State to provide notice regarding its intention to use evidence of alleged extraneous offenses is to prevent the defense from being surprised and to allow the defendant adequate time to prepare a defense against the State's introduction of extraneous offenses during trial. Cf. Hayden v. State, 66 S.W.3d 269, 271 (Tex. Crim. App. 2001) (discussing the purpose of evidentiary notice provisions); Hernandez v. State, 914 S.W.2d 226, 234 (Tex. App.—Waco 1996, no pet.) (describing the purpose of the Rule 404(b) notice requirement).
Application
At the close of the admissibility hearing, the trial court determined the 2013 version of Article 38.37 applied to the case and allowed admission of V.D.'s testimony. The trial court noted the requirements of Article 38.37 had been satisfied. After listening to the parties' arguments during the hearing on Charles's motion for new trial, the trial court reiterated the 2013 version of Article 38.37 applied to Charles's case. The trial court based its determination on the language of the statutory note addressing the application of the 2013 amendments. See TEX. CODE CRIM. PROC. ANN. art. 38.37, Statutory Note (West Supp. 2015) [Section 2 of Acts 2013, 83d Leg., ch 387 (S.B. 12)]. The trial court additionally reiterated the State's notice provided on October 14, 2013 was sufficient because it was specific and detailed and, thus, advised Charles of the State's intent to present V.D.'s testimony to show Charles's character or actions in conformity with that character during its case-in-chief in the guilt/innocence phase.
As Charles admits, the State provided notice eight months before trial began regarding its intent to use evidence of other sexual offenses committed by Charles against V.D. Moreover, that notice specified the State intended to introduce the evidence pursuant to rules and statutes authorizing, albeit for limited purposes, use of that type of evidence during the guilt/innocence phase or the punishment phase. Perhaps, most significantly, the notice explained the State intended to use the evidence under Rule of Evidence 404(b), which allows evidence of other crimes or bad acts to be admitted for the purposes of establishing, among other things, "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." TEX. R. EVID. 404(b)(2).
Accordingly, eight months before the trial was set to begin, the State notified Charles, which allowed him to marshal a defense against the use of alleged extraneous-offense evidence. The notice provided on October 14, 2013, was after the effective date of the 2013 amendment and complied with the 2013 version of Article 38.37. Although the State's notice stated it was given pursuant to the 1995 version, the statutory note of the 2013 amendment on September 1, 2013, provided notification to Charles that the 2013 amendment applied.
Therefore, Charles had notice eight months before trial of the State's intention to admit V.D.'s testimony pertaining to alleged extraneous offenses, as well as the specific instances of extraneous sexual offenses. In addition, Charles had notice the 2013 amendment was in effect and would apply to his criminal proceeding even though the State's notice, itself, stated the 1995 version would apply. For these reasons, this court concludes the State's notice satisfied the intention of the Article 38.37 notice provision to prevent surprise and allow Charles the opportunity to marshal a defense, as well as the strict substantive requirements, which include 30- day notice. Therefore, this court concludes the trial court's decision to admit V.D.'s testimony pursuant to Article 38.37 is supported by the record and falls within the zone of reasonable disagreement. Thus, the trial court did not abuse its discretion by admitting V.D.'s testimony of alleged extraneous offenses.
Charles's third issue on appeal is overruled. Issues One and Two: Structural, Fundamental, or Constitutional Error
Because this court concludes the trial court did not err by admitting V.D.'s testimony, we need not proceed to the arguments presented by Charles in issues one and two that pertain to the harm analysis to be applied in the event this court concluded error occurred. Accordingly, issues one and two are overruled.
Issue Four: Jury Instruction
In his fourth issue on appeal, Charles contends he suffered egregious harm and was denied a fair and impartial trial by the trial court's jury instruction to consider V.D.'s testimony under Article 38.37. Specifically, Charles argues the inclusion of the complained-of jury instruction was erroneous because V.D.'s testimony was inadmissible pursuant to Article 38.37. Charles does not complain of any error in the substance of the jury instruction but complains only that the instruction regarding consideration of V.D.'s testimony under Article 38.37 should not have been included because the evidence, itself, was inadmissible.
Standard of Review
An appellate court's first duty in analyzing an alleged jury-instruction error is to determine whether error occurred. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, the appellate court must then determine whether that error requires reversal based on the harm analysis set forth in Almanza v. State. Villareal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). "Under Almanza, the degree of harm required for reversal depends on whether error was preserved in the trial court." Villareal, 453 S.W.3d at 433. Error properly preserved by objection will require reversal provided the defendant suffered "some harm." Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013); Ngo, 175 S.W.3d at 743. On the other hand, error not properly preserved by objection must be "fundamental," and reversal is required only if the defendant suffered egregious harm. Reeves, 420 S.W.3d at 816; Ngo, 175 S.W.3d at 743-44.
Application
Charles's complaint here is essentially the same complaint raised in his first three issues: the trial court erred by admitting V.D.'s testimony. In his fourth issue, Charles argues the jury instruction was erroneously included because the evidence was inadmissible. This court has already determined the trial court did not err by admitting V.D.'s testimony pursuant to Article 38.37. Because the trial court did not err by admitting this evidence, the trial court did not err by including an instruction allowing the jury to consider V.D.'s testimony under Article 38.37. Charles presents no other challenge to this jury instruction.
Therefore, this court concludes the trial court did not err by including the jury instruction regarding consideration of V.D.'s testimony under Article 38.37. For this reason, this court need not proceed to a harm analysis. See Villareal, 453 S.W.3d at 433.
Charles's fourth issue is overruled.
CONCLUSION
For the reasons stated, we overrule Charles's issues raised on appeal. Accordingly, the trial court's judgment is affirmed.
Jason Pulliam, Justice DO NOT PUBLISH