No. 09-09-00203-CR
Submitted on April 15, 2010.
Opinion Delivered May 12, 2010. DO NOT PUBLISH.
On Appeal from the 356th District Court, Hardin County, Texas Trial Cause No. 19151.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
HOLLIS HORTON, Justice.
Appellant, Tracy J. Howard, pled guilty to possessing more than fifty pounds of marijuana, a second degree felony. See TEX. HEALTH SAFETY CODE ANN. § 481.121 (Vernon Supp. 2009). The trial court found Howard guilty and then sentenced him to twenty years' imprisonment. Howard claims the trial court erred by failing to exclude evidence of his extraneous crimes, and he argues that his sentence constitutes a cruel and unusual punishment. We overrule Howard's issues and affirm the trial court's judgment.
Background
In March 2007, Howard was arrested in Hardin County for possession of marijuana and for possession of cocaine. An informant's tip led to Howard's arrest. Prior to Howard's arrest, Sergeant Mark Davis of the Hardin County Sheriff's Department observed Howard take containers from his car and load them into another car, a Nissan. Based on the informant's tip, Sergeant Davis believed that marijuana was in the containers. Howard and two others left in the Nissan, but they were stopped by other officers about one mile from the location where Sergeant Davis observed Howard transferring the containers. The Nissan contained approximately sixty-two pounds of marijuana. When the officers searched Howard's car they also found a cigarette pack containing cocaine. The State indicted Howard for possession of marijuana in an amount of more than fifty pounds but less than two thousand pounds, a second degree felony. TEX. HEALTH SAFETY CODE ANN. § 481.121. In November 2008, Howard filed a motion requesting notice of whether the State was going to use evidence of "other alleged crimes, wrongs or acts of the defendant[.]" In February 2009, the State notified Howard of its intent to introduce evidence on Howard's extraneous offenses, identifying offenses that had occurred in July 2006, December 2006, March 2007, and May 2007. The State's notice identifies a misdemeanor conviction for possessing marijuana, a prior arrest for possessing marijuana (a misdemeanor), and four arrests on charges of possession of controlled substances (three felonies and one misdemeanor). However, the State's notice did not specifically mention its intent to use testimony about Howard's involvement in delivering marijuana to Louisiana. In March 2009, Howard pled guilty, without the benefit of a plea agreement, to possession of marijuana, a second degree felony. The trial court found Howard guilty of the offense and ordered a presentence investigation report. In April 2009, the court conducted a punishment hearing. At the punishment hearing, the State called the informant as a witness. During the informant's testimony, the State asked the informant whether he had ever been to a specific college in Louisiana, and the informant answered: "Yes." When asked what he had done on those trips, the informant answered: "Delivered marijuana for [Howard]." At that point, Howard's counsel objected and asserted that the State did not notify him of its intent to prove extraneous offenses involving trips to Louisiana. The trial court overruled Howard's objection. However, the record also contains other testimony that was admitted without objection about Howard's trips to Louisiana that involved the sale of drugs. Specifically, Sergeant Davis testified that Howard told him that he had transported marijuana to a college in Louisiana and to Morgan City, Louisiana on prior occasions. In addition, Howard testified that he had gone on one previous trip and transported about twenty pounds of marijuana, but he did not specify whether this was the same trip the informant had mentioned about the college in Louisiana. At the conclusion of the punishment hearing, the trial court sentenced Howard to twenty years' imprisonment. Issue One
Howard asserts the State failed to give him notice of its intent to introduce evidence about his prior extraneous offenses or bad acts. Although Howard's brief is not very specific, we assume that Howard's complaint concerns the informant's testimony claiming that Howard had travelled to a college in Louisiana to sell drugs. Howard further argues that he was harmed by the trial court's failure to exclude the evidence of his extraneous crimes because the court assessed the maximum punishment for a second degree felony, twenty years. We review a claim challenging the admission of evidence of extraneous offenses under an abuse of discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996); Roethel v. State, 80 S.W.3d 276, 280 (Tex. App.-Austin 2002, no pet.). We will affirm the trial court's decision as long as it is within `"the zone of reasonable disagreement.'" Roethel, 80 S.W.3d at 280 (quoting Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001)). If the State, after being requested to provide notice, fails to give reasonable notice of its intent to introduce evidence pertinent to the defendant's prior criminal acts, we then conduct a harm analysis to determine if the admission of the evidence was harmful. Roethel, 80 S.W.3d at 281; see also TEX. R. APP. P. 44.2(b). "The Rule 44.2(b) harm standard is whether the error in admitting the evidence `had a substantial and injurious effect or influence in determining the jury's verdict.'" Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005) (applying TEX. R. EVID. 404(b)) (quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). In determining whether the erroneous admission of prior crimes was harmful, we examine the record to determine if the defendant was surprised by the substance of the testimony and if his ability to prepare for the evidence was affected. Hernandez, 176 S.W.3d at 825; see Roethel, 80 S.W.3d at 282. Because Howard requested notice and the State provided notice with respect to the prior crimes it intended to introduce into evidence, we must first evaluate whether the notice the State provided constituted reasonable notice of its intent to introduce evidence about Howard's sale of drugs in Louisiana. "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) (Vernon Supp. 2009). In its brief, the State does not argue that the notice it filed provided Howard with notice of its intent to prove Howard's crimes in Louisiana. Instead, the State argues that prior to the trial, it gave Howard police reports, and the narrative portions of those reports revealed that the informant told police that Howard had used his contacts around the college in Louisiana to "move" marijuana there in the past. Additionally, the State told the trial court that it gave notice based on its "open file" policy and that Howard had seen the offense report in its file. Nevertheless, the Texas Court of Criminal Appeals has held that an "open file" policy is not the equivalent of notice that the evidence in the file will be used at trial. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995). In Buchanan, the Court held, "[w]e cannot conclude that the mere opening of [the State's] file containing an offense report detailing extraneous evidence satisfies the requirement of giving notice `of intent to introduce' such evidence." 911 S.W.2d at 15 (relying on Rule 404(b) of the Texas Rules of Evidence). The existence of some information about Louisiana drug sales is not the equivalent to the State's notification that it intended to introduce evidence about those sales during its case in chief. See id. In reviewing the formal notice the State filed in response to Howard's request, we conclude that the State's formal notice fails to specifically mention Howard's involvement in selling drugs in Louisiana. See id. The offenses described in the State's notice all occurred in Texas. Further, the information contained in the police reports does not include the date on which Howard was involved in selling drugs in Louisiana, the parish in which the crimes occurred, or the name of any alleged victims. We conclude that the police reports on which the State relies are insufficient to demonstrate that the State complied with the statutory requirements of article 37.07, section 3(g) of the Texas Code of Criminal Procedure. Buchanan, 911 S.W.2d at 15. Because the State failed to provide reasonable notice to Howard of its intention to use evidence of his crimes in Louisiana, we conclude that the trial court abused its discretion by failing to exclude the informant's testimony about Howard's criminal activity in Louisiana. Next, we evaluate whether the admission of the informant's testimony was harmful. TEX. R. APP. P. 44.2(b). The erroneous admission of extraneous offenses in violation of article 37.07's notice requirement is nonconstitutional error, and we must disregard any nonconstitutional error that does not affect a substantial right. See Roethel, 80 S.W.3d at 281. "To assess nonconstitutional errors, we examine whether the purpose of the statute or rule violated was thwarted by the error." Id. With respect to requests for notice of prior crimes, the purpose of article 37.07's notice requirement is "to enable the defendant to prepare to meet the extraneous offense evidence." See id. at 282 (citing Nance v. State, 946 S.W.2d 490, 493 (Tex. App.-Fort Worth 1997, pet. ref'd)). Here, Howard had received the police reports reflecting that the informant claimed Howard had been involved in transporting drugs to Louisiana, and the reports also referenced the same college in Louisiana the informant later mentioned during his testimony at the punishment hearing. Significantly, Howard did not claim surprise when the informant testified about the Louisiana sales, nor did he attempt to explain why he needed the date and names of the victims or the parishes where the incidents were alleged to have occurred to "meet" the informant's testimony. After reviewing the transcript of Howard's punishment hearing, we cannot say that Howard was surprised by the informant's testimony. See Hernandez, 176 S.W.3d at 825. Moreover, there was other unobjected to testimony at the hearing that indicated Howard's involvement in the transport of drugs to Louisiana. Finally, there was evidence that Howard had involvement with drugs on prior occasions, as the evidence showed he had been convicted of possession of marijuana and that he had a drug-related felony pending at the time of trial. Because the informant's testimony of Howard's drug activity in Louisiana was cumulative of other testimony that showed Howard's involvement in drug activity, and because he was not surprised with the informant's testimony for the first time at his punishment hearing, we conclude that the trial court's error was not harmful. See TEX. R. APP. P. 44.2(b). We overrule issue one. Issue Two
In issue two, Howard asserts that the trial court assessed a cruel and unusual punishment by sentencing him to twenty years' imprisonment. Howard argues the trial court should have sentenced him to a lesser prison term, or even probation, given his limited criminal history. Howard argues that his sentence violates the constitutional and statutory prohibitions against cruel and unusual punishment. Howard's sentence was within the statutorily-authorized range of punishment for second degree felonies. See TEX. HEALTH SAFETY CODE ANN. § 481.121 (possession of marijuana in an amount of 2,000 pounds or less but more than fifty pounds is a second degree felony); TEX. PEN. CODE ANN. § 12.33 (Vernon Supp. 2009) (second degree felony punishment range is not more than twenty years or less than two years of imprisonment and a fine up to $10,000). A punishment that is within the statutory range for an offense is generally not excessive, cruel, or unusual. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.-Corpus Christi 2005, pet. ref'd). Moreover, Howard failed to preserve his complaint about the length of his sentence for appellate review, as he did not present a timely objection to his sentence to the trial court nor did Howard raise his claim in a post-trial motion. See TEX. R. APP. P. 33.1(a); see also Jacoby v. State, 227 S.W.3d 128, 130 (Tex. App.-Houston [1st Dist.] 2006, pet ref'd) ("The failure to specifically object to an alleged disproportionate sentence in the trial court or in a post-trial motion waives any error."). We conclude that Howard failed to preserve any issue for appeal regarding the length of his sentence. We overrule issue two. Having overruled both of Howard's issues, we affirm the trial court's judgment. AFFIRMED.