No. 05-09-01119-CR
Opinion issued July 28, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 3 Collin County, Texas, Trial Court Cause No. 003-81398-09.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
Opinion By Justice BRIDGES.
Appellant David Blough appeals his conviction for driving while intoxicated and accompanying sentence. We affirm.
Background
Prior to trial, appellant's counsel filed a request for "any and all information that [appellant] is entitled to receive as the accused or as a witness under sections 37.07, 38.37 of the Texas Code of Criminal Procedure and under rules 404(b) and 609 of the Texas Rules of Evidence." The request was dated May 15, 2009 and was accompanied by a certificate of service, stating the request was forwarded "to the Collin Co. DA via US Post or via FAX" on May 15, 2009. At the conclusion of the guilt/innocence phase of the trial, the jury returned a verdict of guilty, and the court immediately proceeded with the punishment phase. During the punishment phase, the State introduced evidence of three extraneous offenses. Appellant objected that the evidence was inadmissible under code of criminal procedure article 37.07 since he did not receive notice. The State, however, argued it did not have appellant's request in its file and had no knowledge of the request until approximately thirty minutes prior to the objection. The court overruled appellant's objection and allowed the evidence to be admitted. Closing arguments were heard the next day, before which, appellant asked the court to change its ruling on whether to admit evidence of extraneous offenses. This motion was denied. After deliberation, the jury assessed appellant's punishment at a fine of $500 and 120 days of confinement. This appeal ensued. Analysis
In a single issue, appellant argues the trial court erred in admitting evidence of extraneous offenses without timely notice of intent from the State, despite appellant's proper request for such notice. The standard of review for a trial court's ruling on the admissibility of an extraneous offense is abuse of discretion. Henderson v. State, 29 S.W.3d 616, 624-25 (Tex. 2000); Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994). An extraneous offense is any act of misconduct, whether resulting in prosecution or not, which is not shown in the charging instrument and which was shown to have been committed by the accused. Hernandez v. State, 817 S.W.2d 744, 746 (Tex. App.-Houston [1st Dist.] 1991, no pet.). Under rule 404(b) of the rules of evidence, evidence of a defendant's prior misconduct is generally inadmissible. Article 37.07 of the code of criminal procedure, however, provides for admission of extraneous offense evidence if, upon timely request by the defendant, the State gives timely notice of its intent to use that evidence in the punishment phase of trial. See Tex. Code Crim. Proc. Ann. art. 37.07(3)(g) (Vernon 2006); Henderson, 29 S.W.3d at 625. A timely request from a defendant must be in writing and served upon the prosecution. Espinosa v. State, 853 S.W.2d 36, 38 (Tex. Crim. App. 1993). In other words, the State must be put on notice that the defendant is requesting such notice pursuant to rule 404(b). Id. A certificate of service creates a presumption that a document properly sent was received by the addressee. Webb v. State, 36 S.W.3d 164, 177 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). However, this presumption may be rebutted if the receiving party provides some proof of non-receipt. Id. Here, appellant's request for notice of intent to introduce extraneous evidence is included in the clerk's record and includes a certificate of service, stating a copy was forwarded "to the Collin Co. DA via US Post or via FAX" on May 15, 2009. (emphasis added). The prosecution, stated on the record that the request was not within its file. The State also indicated "the only thing that appears on the County computer system, is a letter of representation that was filed around the time that he is stating that his notice was given. . . ." The trial court determined the credibility of the evidence and was free to admit or exclude evidence subject to the abuse of discretion standard. See Sarringar v. State, 2003 WL 861698, *4 (Tex. App.-Fort Worth March 6, 2003, pet. ref'd). Because the trial court determined the credibility of the evidence, it was free to believe either party. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992) (fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (fact finder may choose to believe or disbelieve all or any part of any witness's testimony); Sarringar, 2003 WL 861698, *4 (trial court determined the credibility of the evidence and was free to believe the prosecutor's sworn statement that the State did not receive the request for notice of intent to offer evidence of extraneous offenses.) Therefore, the trial court did not abuse its discretion in deciding that the State did not receive appellant's request for notice of intent to offer extraneous offenses. See Ransom, 920 S.W.2d at 299. We conclude the trial court did not err in admitting evidence of extraneous offenses and overrule appellant's sole issue. We affirm the judgment of the trial court.