Opinion
No. 05-04-00072-CR
Opinion Issued May 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-53645-TP. Affirmed.
OPINION
The jury found Timothy Earl Booker guilty of unlawful possession of a firearm by a felon, found the enhancement paragraph true, and sentenced appellant to eight years in prison and a $1000 fine. In one point of error, appellant complains the trial court erred by overruling appellant's objection to the admission of an extraneous offense. We affirm the trial court's judgment.
BACKGROUND
After jury selection, the trial court held a hearing on appellant's pretrial motions and overruled his motion to suppress appellant's oral statement. At the conclusion of this hearing, the trial court asked if there was "any thing further before we start?" Appellant's attorney then told the trial court that he had just learned of a extraneous offense-a traffic ticket that appellant received three days before the offense date alleged in the instant indictment. The State responded that because of appellant's voir dire statements, the State expected to use the ticket to show that appellant had "been in the car certainly before [the day of the offense]." The State explained that one of the officers who stopped appellant for the instant offense ran the automobile's license plate to determine the vehicle's registered owner and its ticket history. It was that record search which revealed appellant had been issued a traffic ticket while driving this same vehicle three days before the alleged date of the instant offense. The trial court informed the State to let the court know before any attempt to introduce the "ticket information" and it would rule on admissibility at that time.EXTRANEOUS OFFENSES
In his sole point of error, appellant complains that the State did not give sufficient notice to appellant that it would use this "ticket evidence" during trial. Although the State tendered notice of extraneous offenses five days before trial began, the State did not include the traffic ticket in its tender. Appellant maintains, but for this "ticket evidence," only proximity connected appellant to the firearm. The State responds that it "was not required to give notice, and there was no harm" because the officer did not testify to a prior offense or bad act. Also the State claims that because the State did not offer this evidence in its case-in-chief, rule 404(b) would not apply.1. Standard of Review
We review a trial judge's decision to admit evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994).2. Applicable Law
Evidence of previous crimes, wrongs, or acts is not admissible to prove a defendant's character to show he acted in conformity therewith. Tex. R. Evid. 404(b). However, such evidence may be admissible for other purposes, provided the State, upon timely request from the defendant, gives advance notice of intent to introduce the evidence. Id. This rule applies only to the State's case-in-chief. Jaubert v. State, 74 S.W.3d 1, 3-4 (Tex.Crim.App. 2002).3. Application of Law to Facts
After the State rested its case-in-chief, appellant recalled David Kattner, the Dallas Police Officer who retrieved the firearm from the vehicle appellant had been driving. Appellant questioned Kattner on whether he "ran the car" to establish who owned the vehicle. When the State cross-examined Kattner, it asked him what "running the car" meant. Kattner replied that he ran the license plate number to established ownership. The State approached the bench, and the record shows an "(OFF-RECORD DISCUSSION, AT THE BENCH)." When the testimony resumed before the jury, the State inquired if a certain license plate number was the number he ran. This exchange followed:[Kattner].
Correct. I ran the registration and I also ran the ticket history on —
[The State].
Okay. Let me ask you this, Officer, did you, during the course of your investigation, while running this, did you come to learn that the Defendant had, in fact, been operating this motor vehicle three days prior to the offense on July 15, 2003.
[Appellant].
Your Honor, . . . we object to . . . [this] type of extraneous offense. No notice was given-notice was given to the Defense yesterday, the day of trial, and that this goes into that same issue, and we'll object to that.The trial court overruled the objection and Kattner testified that he came to learn appellant had been operating this same motor vehicle three days before the date of the instant offense-July 15, 2003. The State then passed the witness. It is this testimony that appellant contends was inadmissible and the only evidence to connect appellant to the weapon. The State did not offer the objected-to testimony during its case-in-chief. Rather, the State had rested its case-in-chief and appellant had called Kattner to testify to the vehicle's ownership. Because rule 404(b) applies only to the State's offering extraneous offenses during it case-in-chief, the statutory notice requirement does not apply in this case. See Jaubert, 74 S.W.3d at 3-4. The trial court did not abuse its discretion in admitting the evidence. We overrule appellant's sole issue. We affirm the trial court's judgment.