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Court of Appeals of Texas, Dallas.


No. 05–10–00859–CR

Decided: January 20, 2012

Before Chief Justice Wright and Justices Francis and Campbell


Opinion By Justice Campbell 1

Appellant waived a jury trial and entered a plea of guilty to the offense of possession with intent to deliver methamphetamine in an amount of four grams or more but less than 200 grams, a first-degree felony.   Adjudication of guilt was deferred and appellant was placed on community supervision for six years in accordance with a plea bargain with the State.   In March 2010, the State filed a motion to proceed to adjudication, alleging violations of the terms of community supervision.   At a hearing on the motion, appellant judicially confessed to committing five new felony offenses, and admitted to the non-payment of supervisory fees as well as a failure to perform community service.   After a hearing, the trial court adjudicated appellant's guilt and appellant was sentenced to fifteen years confinement.   Appellant filed a motion for new trial.   After a hearing, that motion was denied.   On appeal, appellant brings a single point of error, contending that the trial court should have revisited his sentencing decision after the motion for new trial was heard.   We disagree and will affirm.

Arguments of the Parties

Appellant's sole contention on appeal is that “the trial court abused its discretion when it overruled Appellant's motion for new trial.”   Appellant's substantive contention in his brief addresses what he terms a violation of due process.   Specifically, he contends “when the State failed to give notice that it intended to present evidence of a burglary of a habitation arrest, it denied [appellant] due process to defend against the allegation.”

The State replies that appellant did not object to the admission into evidence of an extraneous burglary of a habitation offense he allegedly committed while on community supervision.   Notably, the State also frames its argument around appellant's failure to request notice of the State's intention to offer such evidence at the hearing to adjudicate.

Couching its argument in the alternative, the State argues initially that because appellant was arrested, he surely knew of the burglary charge that was introduced in evidence.   Prior knowledge of the burglary, however, is not the issue.   The State then identifies the issue in this case to be whether the statutory right to notice of extraneous crimes or bad acts is waived by appellant's failure to timely request such notice.   See Tex.Code Crim. Proc. Ann. art. 37.07, § 3(g) (West Supp.2011).

Standard of Review

We review the trial court's ruling as to the admissibility of extraneous offense evidence under an abuse of discretion standard.  Brooks v. State, 76 S.W.3d 426, 435 (Tex.App.—Houston [14th Dist.] 2002, no pet.).

Error Preservation—Appellate Rules

A threshold matter is the question of whether appellant preserved error for appeal.   At the hearing on a motion to adjudicate, appellant failed to object to the introduction of an unadjudicated burglary allegedly committed by appellant.   For the first time in the motion for new trial hearing, and now on appeal, he contends this new offense should not have been admitted.  Texas Rule of Appellate Procedure 33.1(a) provides the prerequisites to presenting a complaint for appellate review.   See Tex.R.App. P. 33.1(a);  Young v. State, 137 S.W.3d 65, 69–70 n.5 (Tex.Crim.App.2004).   It must be made to the trial court by a timely request, objection or motion, and the grounds must be specific enough to focus the trial court's attention on the precise issue for which appellant claims relief.   See Tex.R.App. P. 33.1(a).   Finally, appellant must either secure an adverse ruling or a refusal to rule to which appellant objected.   See id;  see generally Young, 137 S.W.3d at 69–70.   In the instant case, appellant failed to comply with these requirements.

Error Preservation—Due Process

Though appellant does not couch his claim as a Fourteenth Amendment constitutional claim, it is clear that was his intention.   He avers that he was denied the opportunity to present a defense or mitigation of punishment to the unadjudicated burglary charge because the State failed to give notice of its intent to offer such evidence.   But again, this Court is confronted with a failure on appellant's part to properly raise this issue before the trial court, at least until the motion for new trial hearing.

A similar issue was decided by this Court in Valadez v. State, No. 05–09–00496–CR, 2011 WL 149853 (Tex.App.—Dallas, Jan. 18, 2011, pet.ref'd) (not designated for publication).   In Valadez, the defendant asserted on appeal that his Sixth Amendment right to confrontation had been violated.   This Court concluded that defense counsel's objection as to the manner in which defendant's buccal swab was taken failed to preserve error in the trial court on the Confrontation Clause grounds raised in his first issue on appeal.   Id., 2011 WL149853, at *4;  see Tex.R.App. P. 33.1;  Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990) (stating even constitutional errors may be waived);  Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App.2000) (concluding alleged constitutional error was waived by failing to object on that ground);  see also Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App.2009) (A claim that a statute is facially unconstitutional must be urged at the trial court or it will be procedurally defaulted when raised for the first time on appeal).

Preservation of error is not merely a technical procedural matter by which appellate courts seek to overrule points of error in a cursory manner.   Fairness to all parties requires a party to advance his complaints at a time when there is an opportunity to respond or cure them.  Loredo v. State, 159 S.W.3d 920, 923 (Tex.Crim.App.2004).

Error Preservation—Texas Statutory Notice

There is in place a statutory mechanism for obtaining notice of prior crimes or bad acts that the State intends to introduce at trial.   Nowhere in appellant's brief, however, is there a mention of same.  Article 37.07 provides, inter alia, “on timely notice of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by [Tex.R. Evid. 404(b) ].”  See Tex.Code Crim. Proc. Ann. art. 37.07, § 3(g).  Rule 404(b) requires the State to give reasonable notice in advance of trial of its intent to use unadjudicated offenses therein.   Tex.R. Evid. 404(b).  However, article 37.07, section 3(g) specifically provides that the notice requirement under rule 404(b) “applies only if the defendant makes a timely request to the attorney representing the State for the notice.”   See Tex.Code Crim. Proc. Ann. art. 37.07, § 3(g).

In this case, the record does not contain either demonstrative or testimonial evidence that appellant made a timely request to the attorney for the State for such notice.   The State and the trial court were free to conclude that appellant desired no such notice.   Further, appellant did not lodge an objection to the evidence when it was proffered and admitted.   No error was preserved with respect to article 37.07, section 3(g).

Even if we assume that appellant's objection to lack of notice at the new trial hearing was timely under article 37.07, section 3(g), appellant did not contest the sufficiency of the burglary evidence offered by the State.2  Accordingly, we disregard any error that does not affect a substantial right.  Tex.R.App. P. 44.2(b).  Having examined the record and briefs of the parties, three items of evidence convince this Court that, error, if any, did not affect appellant's substantial rights, to-wit:  (1) appellant admitted on the witness stand to committing five other felony crimes while on probation;  (2) the trial court stated, on the record, that he was taking into consideration the fact that appellant had been convicted of three new state jail felonies while on probation, and for that reason alone, he was revoking appellant's probation;  and (3) appellant was sentenced to fifteen years' imprisonment for an offense that was punishable by up to life imprisonment.   We conclude appellant was not substantially harmed by the admission into evidence of the uncharged burglary.   Appellant's sole point of error is overruled.

The judgment of the trial court is affirmed.


FN1. The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment..  FN1. The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment.

FN2. Admitting evidence without timely notice does not constitute constitutional error.   See McDonald v. State, 179 S.W.3d 571, 578 (Tex.Crim.App.2005)..  FN2. Admitting evidence without timely notice does not constitute constitutional error.   See McDonald v. State, 179 S.W.3d 571, 578 (Tex.Crim.App.2005).


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