Nos. 05-07-01234-CR, 05-07-01235-CR
Opinion Filed November 13, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 366-81673-06 366-81674-06.
Before Justices BRIDGES, FITZGERALD, and LANG. Opinion By Justice LANG.
DOUGLAS S. LANG, JUSTICE.
Samuel Scott Jones appeals two trial court judgments. In cause number 05-07-01234-CR, Jones pleaded guilty to aggravated kidnapping and the jury assessed his punishment at life imprisonment. In cause number 05-07-01235-CR, Jones pleaded guilty to aggravated assault with a deadly weapon. The jury answered the question concerning the deadly weapon in the affirmative, and assessed his punishment at ninety-nine years' imprisonment. Jones raises three issues on appeal. He argues the trial court erred when it (1) denied his motion to change venue, (2) accepted his guilty plea without admonishing him on the range of punishment, and (3) allowed the State to introduce extraneous offense evidence without providing written notice of its intent to introduce such evidence at trial. We decide against Jones on all three issues. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 23, 2006, Eduardo and Melanie Jiminez were sitting in their car waiting for Mrs. Jiminez's mother, Christie Bundren, at a truck stop in Fairview. Bundren was driving from Michigan to Texas in her 18-wheeler truck. As the Jiminezes waited for Bundren, Jones approached their car and asked them to "jump" the battery in the SUV he was driving. Mr. Jiminez exited the car to help Jones. Then, Jones brandished a gun and attempted to steal the Jiminezes' car. Mr. Jiminez grabbed at the gun and unsuccessfully attempted to wrestle it away from Jones. Jones attempted to steal the car again, but Mrs. Jiminez drove off and Mr. Jiminez ran to the gas station to call 9-1-1. Meanwhile, Bundren arrived at the truck stop. As Mr. Jiminez approached the gas station, he saw Jones run up to and enter Bundren's truck. Bundren then drove off. Mr. and Mrs. Jiminez reported Jones's abduction of Bundren almost immediately. The police chased Jones through three counties. Two officers made in-car videos of the chase, and a television crew filmed and taped some of the telephone negotiations between Jones and a Dallas police officer. Ultimately, Jones released Bundren and surrendered to the police. Prior to trial, Jones filed a defense request for notice of extraneous offenses the State intended to introduce at trial. Because the State did not provide Jones with any written notice, Jones objected to the admission of any extraneous offense evidence at trial. In response to the objection, the State advised the trial court the parties had engaged in "informal" discovery by providing Jones's counsel copies of the State's entire file, including witness statements and police reports concerning the extraneous offenses. Also, one month before trial, the prosecutor and defense counsel discussed in great detail evidence the State intended to offer. Defense counsel acknowledged the State provided him with "documents and various things." Jones's objection was overruled. When the trial court arraigned Jones, he was informed the charges were aggravated kidnapping, a first-degree felony, and aggravated assault with a deadly weapon, a second-degree felony. Jones told the trial court he understood the charges and the range of punishment for each offense. Also, he told the trial court he was aware the State had sought enhancement of each charge with a prior felony conviction. Then, he acknowledged he was not eligible for probation due to the enhancement and, initially, pleaded not guilty. At the beginning of voir dire, the trial court informed the venire of the charges against Jones and ranges of punishment for each. During the State's voir dire, the prosecutor repeated the range of punishment for each charge and inquired of the panel as to whether they could consider the full range. In voir dire by Jones's counsel, the panel was informed again of the punishment ranges and the reduced minimum punishment that would apply if the jury found Jones released his victim in a safe place. After the jury was sworn, Jones changed his plea to guilty on both charges. The trial court did not specifically admonish Jones as required under Texas Code of Criminal Procedure article 26.13 before it accepted Jones's plea. During the punishment phase of trial, over Jones's running objection, the State introduced extraneous offense evidence that Jones stole three vehicles at gunpoint in the twenty-four hours before the aggravated kidnapping occurred. The State also introduced evidence of Jones's criminal record, including prior drug and theft convictions. The jury assessed punishment at life imprisonment for the aggravated kidnapping and ninety-nine years of imprisonment for the aggravated assault. Jones's motion for new trial was overruled and he timely perfected this appeal. II. CHANGE OF VENUE
In his first issue, Jones argues the trial court erred when it denied his motion to change venue. Jones contends the publicity prior to his trial was pervasive, prejudicial, and inflammatory due to newspaper coverage, news videos, and a jail interview posted on the internet. Also, he argues he was entitled to a change of venue as a matter of law because the State's controverting affidavits failed to attack the credibility of the persons making the affidavit or their "means of knowledge" as required by section 31.04 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 31.04 (Vernon 2006). The State responds that Jones failed to meet his burden to prove the pre-trial publicity was pervasive, prejudicial, and inflammatory. Additionally, the State argues Jones was not entitled to a change of venue as a matter of law because the State's controverting affidavits averred Jones could receive a fair and impartial trial. In the alternative, the State contends Jones waived any complaint about the affidavits because he participated in a hearing on the motion, offered evidence, and allowed the State to introduce evidence. A. Standard of Review
The standard for review on appeal from a ruling on a motion to change venue is "abuse of discretion." See Gonzales v. State, 222 S.W.3d 446, 449 (Tex.Crim.App. 2007). The trial court's decision concerning a motion to change venue will be upheld if it "falls within the zone of reasonable disagreement." Id.B. Applicable Law
Section 31.03(a) of the Texas Code of Criminal Procedure provides a change of venue may be granted if the defendant establishes that "there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial." Tex. Code Crim. Proc. Ann. art. 31.03(a)(1). A defendant seeking a change of venue must file a written motion supported by his own affidavit and the affidavit of at least two credible persons residing in the county where the prosecution is instituted. See id. art. 31.03(a). 1. Pre-trial publicity To justify a change of venue due to pre-trial publicity, a defendant must show the publicity was pervasive, prejudicial, and inflammatory. See Gonzales, 222 S.W.3d at 449; Renteria v. State, 206 S.W.3d 689, 709 (Tex.Crim.App. 2006); Salazar v. State, 38 S.W.3d 141, 150 (Tex.Crim.App. 2001). There are two primary means of discerning whether publicity is pervasive: (1) a hearing on a motion to change venue and (2) the voir dire process. See Gonzales, 222 S.W.3d at 449; Bell v. State, 938 S.W.2d 35, 46 (Tex.Crim.App. 1996). Lack of pervasiveness alone is enough to sustain a trial court's ruling denying a change of venue. See Gonzales, 222 S.W.3d at 450. In reviewing a trial court's denial of a motion to change venue after a hearing, the court of criminal appeals concluded there was no abuse of discretion because the appellant failed to prove the publicity was pervasive. See id. at 450, 452. In Gonzales, the appellant's evidence of pretrial publicity at the hearing on the motion to change venue included three newspaper articles, the surveillance video included in newscasts about the crime, the opinions of two witnesses on the amount of publicity generated by the case, and the effect of the pretrial publicity on the community. Id. at 450. In concluding the trial court did not abuse its discretion, the court of criminal appeals discussed two areas where the appellant failed to provide evidence to prove the pretrial publicity was pervasive. Id. First, the appellant presented "no evidence of how many times the video was shown nor of how many people actually saw the broadcast." Id. Second, "no evidence was presented as to how many people saw the newspaper coverage of the case." Id. In reviewing a trial court's denial of a motion to change venue based upon evidence of pervasiveness elicited during the voir dire process, a trial court is within its discretion to believe jurors' assurances they have not seen any publicity on the case or that the publicity had not influenced them to the point that they could not deliver a fair verdict. See id. Further, case law reflects a trial court is within its discretion to deny a motion to change venue when approximately two-thirds of the venire panel has heard about a case. See id. (listing examples of cases concluding trial courts were within their discretion to empanel juries where 52 of 64 panelists, 60 of 109 panelists, and 44 out of 72 panelists had seen publicity on the defendant's case); Gentry v. State, 259 S.W.3d 272, 279 (Tex.App.-Waco 2008, no pet.) (concluding the trial court did not abuse its discretion when it empaneled a jury where 33 of 60 panelists had seen or heard about the case and five were seated on the jury without challenge for cause). Finally, in the past a trial court's decision has been upheld to deny a motion to change venue when approximately one-third of the panel had formed an opinion that could not be set aside. See Gonzales, 222 S.W.3d at 450 (providing examples where trial courts were within their discretion to empanel juries where 39 out of 112 panelists, and 15 out of 77 panelists, had an opinion they could not set aside). Also, in order to support a change of venue, the law requires "some showing" of prejudicial or inflammatory pre-trial publicity. See id. at 449; DeBlanc v. State, 799 S.W.2d 701, 704 (Tex.Crim.App. 1990). Extensive knowledge of the case or the defendant in the community as a result of pre-trial publicity is not inherently prejudicial. See Gonzales, 222 S.W.3d at 449; DeBlanc, 799 S.W.2d at 704. A defendant must demonstrate an "actual, identifiable prejudice attributable to pretrial publicity on the part of the community from which members of the jury will come." Renteria, 206 S.W.3d at 709 (quoting DeBlanc, 799 S.W.2d at 704). Three matters are taken into consideration when examining whether pretrial publicity is prejudicial and inflammatory: (1) the nature of the publicity, (2) any evidence presented at a change of venue hearing, and (3) testimony received from panelists at voir dire. See Gonzales, 222 S.W.3d at 451; Bell, 938 S.W.2d at 46. News stories from print, radio, or television that are accurate and objective in their coverage are generally not considered prejudicial or inflammatory. See Gonzales, 222 S.W.3d at 451; Bell, 938 S.W.2d at 46; Willingham v. State, 897 S.W.2d 351, 357 (Tex.Crim.App. 1995). Further, news stories are not prejudicial or inflammatory when a large number of panelists are disqualified because they are unable to set aside their opinions after seeing the coverage. See Gonzales, 222 S.W.3d at 452. 2. Change of venue as a matter of law A defendant is entitled to a change of venue as a matter of law if his motion to change venue is proper on its face and the State fails to file controverting affidavits or files an improper controverting motion. See Lundstrom v. State, 742 S.W.2d 279, 281-82 (Tex.Crim.App. 1986). However, if a defendant entitled to a change of venue as a matter of law puts on evidence concerning reasons for the change of venue, and allows the State to do so, the defendant waives his right to a change of venue as a matter of law. See Cooks v. State, 844 S.W.2d 697, 730 (Tex.Crim.App. 1992); Lundstrom, 742 S.W.2d at 282. The issue becomes one of fact for the trial court to determine. See Cooks, 844 S.W.2d at 730; Lundstrom, 742 S.W.2d at 282. Similarly, if the State files controverting affidavits attacking the credibility or means of knowledge of the defendant's affiants, the issue becomes one of fact to be tried by the trial court. See Tex. Code Crim. Proc. Ann. art. 31.04. When the State's affiants swear the defendant can receive a fair trial, the State has complied with article 31.04 and controverted the defendant's affidavits. See Lundstrom, 742 S.W.2d at 287 (op. on reh'g). C. Application of Law to Facts
Jones contends he was entitled to a change of venue as a matter of law because he established prejudice due to pretrial publicity and the State's affidavits failed to attack the credibility of his affiants. The record reflects Jones supported his motion to change venue with an affidavit signed by two residents of Collin County who swore Jones could not obtain a fair and impartial trial. However, the State filed nineteen affidavits that rebutted Jones's assertions he could not receive a fair and impartial trial. See Tex. Code Crim. Proc. Ann. art. 31.04; Lundstrom, 742 S.W.2d at 287 (op. on reh'g). Even were we to assume, without deciding, the State's affidavits were insufficient under article 31.04 as Jones contends, Jones waived his right to a change of venue as a matter of law when he participated in the hearing on the motion to change venue and allowed the State to offer evidence. See Lundstrom, 742 S.W.2d at 282. The issue became one of fact for the trial court. See Tex. Code Crim. Proc. Ann. art. 31.04. Jones offered several exhibits demonstrating the pretrial media coverage of his case, including twelve articles printed from media web sites, five CDs containing video reports that appeared on local television news programs, and a twenty-minute jailhouse interview available in its entirety on a news station's website, but that was not aired in its entirety on television. He framed a window of time during which the coverage was the lead story on the news, stating the abduction was the lead story for a "couple of days" and was discussed for "a week or two after that." The trial court denied the motion at this stage. At the time of trial, Jones renewed his motion to change venue at the conclusion of voir dire. Of the 105 panelists, fifty-nine had seen or heard something about the case. Twenty-four were excused for cause because of their exposure to pretrial publicity; nineteen of those twenty-four had formed an opinion that Jones was guilty. All panelists who stated they were prejudiced by the media coverage were stricken. The trial court denied the motion at this stage as well. On this record, Jones did not meet his burden of showing the pretrial publicity was pervasive. See Gonzales, 222 S.W.3d at 450. Jones did not establish how many times each news video was shown on television or viewed on the internet, nor did he provide an estimate of the number of people who saw the newspaper or television coverage. See id. Further, Jones did not claim any of the stories were inaccurate or biased against him. See id. at 451; Bell, 938 S.W.2d at 46; Willingham, 897 S.W.2d at 357. While a lack of pervasiveness is enough to sustain the trial court's ruling, we conclude Jones also failed to meet his burden to show the pretrial publicity was prejudicial and inflammatory. See Gonzales, 222 S.W.3d at 450. Only nineteen of the 105 panelists claimed to be unable to set aside their opinions that Jones was guilty after seeing the pretrial publicity. Pretrial publicity has not been considered prejudicial or inflammatory where nearly twice as many panelists were excused for cause on such grounds. See id. at 452. Finally, all panelists who stated they were aware of the facts through media coverage and were prejudiced were stricken. The decision of the trial court denying the motion to change venue was within the zone of reasonable disagreement. The trial court did not abuse its discretion. The first issue is decided against Jones. III. PLEA ADMONISHMENT
In his second issue, Jones argues the trial court erred when it accepted his guilty plea without admonishing him on the range of punishment. Jones contends his conviction should be reversed because the trial court failed to admonish him. Jones also argues the trial court should have inquired why he changed his plea, whether his plea was freely and voluntarily made, and whether his guilty plea was part of a plea bargain agreement. Further, he argues the trial court was required to have Jones sign a written waiver regarding the consequences of his plea. Therefore, Jones contends, the trial court did not substantially comply with Texas Code of Criminal Procedure article 26.13. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2008). The State acknowledges the trial court erred by not admonishing Jones prior to accepting his plea, but responds the error was harmless because it did not affect Jones's substantial rights. The State also argues trial courts are not required to expressly ask defendants if their pleas were freely and voluntarily made or have a defendant who pleads guilty to a jury sign a written waiver normally associated with a waiver of a jury trial. A. Applicable Law
Article 26.13 of the Texas Code of Criminal Procedure provides that prior to accepting a plea of guilty, the trial court shall admonish the defendant as to the range of punishment, as well as to other consequences of his plea. See id. art. 26.13(a). A total failure to deliver any of the required admonishments is statutory error subject to harmless error review under Texas Rule of Appellate Procedure 44.2(b). See Bessey v. State, 239 S.W.3d 809, 813 (Tex.Crim.App. 2007); VanNortrick v. State, 227 S.W.3d 706, 708 (Tex.Crim.App. 2007); Anderson v. State, 182 S.W.3d 914, 918 (Tex.Crim.App. 2006); see also Easly v. State, 163 S.W.3d 839, 841 (Tex.App.-Dallas 2005, no pet.). "Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b). To decide whether the trial court's error affected a defendant's substantial rights, an appellate court should conduct an independent examination of the entire record. See VanNortrick, 227 S.W.3d at 708-09. The critical question is whether there is "`a fair assurance that the defendant's decision to plead guilty would not have changed had the court admonished him.'" Id. at 709 (quoting Anderson, 182 S.W.3d at 919). Three factors should be considered: (1) the strength of the evidence of appellant's guilt, (2) whether the appellant knew the consequences of his plea, and (3) whether the omitted admonition actually applied to the defendant's situation. See Bessey, 239 S.W.3d at 813 (citing Anderson, 182 S.W.3d at 919-21); VanNortrick, 227 S.W.3d at 712. If a defendant has full knowledge of the applicable punishment range, a failure to admonish him regarding the range of punishment is harmless error. See Aguirre-Mata v. State, 125 S.W.3d 473, 476-77 (Tex.Crim.App. 2003); Burnett v. State, 88 S.W.3d 633, 641 (Tex.Crim.App. 2002); Easly, 163 S.W.3d at 842. B. Application of Law to Facts and Harm Analysis
The parties agree the trial court did not admonish Jones before accepting his guilty plea. Accordingly, that error is subject to a rule 44.2(b) harm analysis. See Bessey, 239 S.W.3d at 813; VanNortrick, 227 S.W.3d at 708; Easly, 163 S.W.3d at 841. We consider the three "fair assurance" factors to determine whether Jones's decision to plead guilty would not have changed had the trial court admonished him. See Bessey, 239 S.W.3d at 813; VanNortrick, 227 S.W.3d at 712. The first factor examines the strength of the evidence of the appellant's guilt. See Bessey, 239 S.W.3d at 813. Jones initially pleaded innocent, then changed his plea to guilty immediately after the jury was sworn and before the jury heard any evidence. The evidence admitted against Jones during the punishment phase was strong. Bundren testified about the abduction and the jury was provided with an in-car police video of the chase. Also, the State presented evidence from three other victims, demonstrating Jones stole three cars at gunpoint within the twenty-four hour period preceding the abduction. All three victims testified. Further, the State presented evidence of Jones's prior convictions. Jones did not present any evidence that he was not guilty, but accepted responsibility for his actions in his opening statement at punishment and asked the jury for a fair and appropriate response. Although the evidence against Jones was strong, significant evidence of guilt alone does not support a finding that Jones's decision to plead guilty would not have changed if he had been properly admonished. See id. The second factor examines whether Jones knew the consequences of his plea. See VanNortrick, 227 S.W.3d at 712. This requires examining the record to determine whether Jones was aware of the range of punishment, despite the trial court's failure to admonish him. A trial court's failure to provide the applicable admonition has "far less impact on the defendant's decision to plead guilty if he [was] already aware of the particular consequence." Id. The record indicates Jones communicated to the trial court he understood the charges against him and the range of punishment for each one, including enhancement of each charge based on his prior felony convictions. He also acknowledged he was not eligible for probation due to the enhancement. During voir dire, at which Jones was present, the trial court informed the venire panel of the ranges of punishment for each charge. See Easly, 163 S.W.3d at 842; Manoy v. State, 7 S.W.3d 771, 777 (Tex.App.-Tyler, 1999, no pet.); Rachuig v. State, 972 S.W.2d 170, 176 (Tex.App.-Waco 1998, pet. ref'd). Both the prosecution and Jones's counsel spent a significant amount of time describing the punishment ranges during voir dire. Jones's counsel informed the panel about the reduced minimum punishment that would apply if the jury found he released his victim in a safe place. Also, during his opening statement and closing argument, Jones's counsel argued the guilty plea showed Jones accepted responsibility for his crimes and was remorseful. See Gardner v. State, 164 S.W.3d 393, 399 (Tex.Crim.App. 2005) (noting the appellant's guilty plea was part of a strategy to persuade the jury to grant a lesser sentence); Webb v. State, 156 S.W.3d 653, 657 (Tex.App.-Dallas 2005, pet. ref'd) (concluding appellant's use of his guilty plea to gain an advantage in sentencing indicated it was unlikely he would have changed his plea had he been admonished). Finally, nothing else in the record indicates Jones was not aware of the range of punishment for both offenses prior to pleading guilty or that he was unaware of the consequences of his plea. See Aguirre-Mata, 125 S.W.3d at 476-77; Burnett, 88 S.W.3d at 639-41; Easly, 163 S.W.3d at 842. The third factor examines whether the omitted admonition actually applied to Jones's situation. Of the required admonitions under article 26.13, the only admonition directly applicable to Jones was punishment. The record reflects Jones is a U.S. citizen, he did not enter into a plea-bargain agreement, and he was not charged with a crime either requiring him to register as a sex offender or barring him from possessing or transferring a firearm for committing a misdemeanor involving family violence. See Tex. Code Crim. Proc. Ann. art. 26.13; see also Bessey, 239 S.W.3d at 814 (noting the failure to admonish is harmless error where the particular admonition does not apply to that appellant). Accordingly, Jones was not harmed by the trial court's omission of these additional required admonitions. Finally, an additional contention of Jones is the trial court was required to inquire about his change of plea and have Jones sign a written waiver to substantially comply with article 26.13. Jones was entitled to change his plea. However, trial courts are not required to make an "express inquiry" as to whether a plea was freely and voluntarily made to comply with article 26.13. See Basham v. State, 608 S.W.2d 677, 678-79 (Tex.Crim.App. 1980). Because Jones did not enter into a plea bargain agreement, no inquiry by the trial court on this issue was necessary. Additionally, he was not required to sign written waivers associated with waiver of his right to a jury trial because he was tried by a jury. See Fuller v. State, 253 S.W.3d 220, 226 (Tex.Crim.App. 2008) (discussing Williams v. State, 674 S.W.2d 315, 318-19 (Tex.Crim.App. 1984), holding that a plea of guilty to a charge in front of a jury is a trial by jury on punishment only and not an illegal waiver of a jury trial). Considering the record as a whole, we have fair assurance that Jones's decision to plead guilty would not have changed had the trial court admonished him. The trial court's failure to admonish Jones regarding the range of punishments was harmless error. See Aguirre-Mata, 125 S.W.3d at 476-77; Burnett, 88 S.W.3d at 641; Easly, 163 S.W.3d at 842. Also, the trial court did not fail to substantially comply with article 26.13 when it did not inquire about Jones's change of plea or have him sign a written waiver. The second issue is decided against Jones. IV. NOTICE OF EXTRANEOUS OFFENSE EVIDENCE
In his third issue Jones argues the trial court erred when it allowed the State to introduce evidence of Jones's prior extraneous offenses because the State did not provide Jones with written notice of its intent to introduce such evidence at trial. The State responds that written notice of the intent to introduce evidence of rule 404(b) other crimes, wrongs, or acts is not required and contends oral notice was sufficient. In the alternative, the State argues any error the trial court made was harmless because Jones's substantial rights were not affected. A. Standard of Review
An appellate court reviews a trial court's decision to admit evidence under an abuse of discretion standard. See Ramos v. State, 245 S.W.3d 410, 417-18 (Tex.Crim.App. 2008); Roethel v. State, 80 S.W.3d 276, 280 (Tex.App.-Austin 2002, no pet.) (op. on reh'g). The trial court's decision will not be overturned so long as it is correct under any theory of law applicable to the case and the decision is within the zone of reasonable disagreement. See Ramos, 245 S.W.3d at 418; Salazar, 38 S.W.3d at 153-54; Roethel, 80 S.W.3d at 280. B. Applicable Law
The admissibility of extraneous offense evidence during the punishment phase of trial is governed by Texas Code of Criminal Procedure article 37.07, section 3(a)(1). See Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2008). A defendant may make a timely request for notice of the State's intent to introduce extraneous offense evidence at trial. See id. § 3(g). Notice must be given in the same manner required by Texas Rule of Evidence 404(b). See id. Rule 404(b) requires the State to provide "reasonable notice" in advance of trial of its intent to introduce extraneous offense evidence in the State's case-in-chief. See Tex. R. Evid. 404(b). If the State intends to introduce such evidence, 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). The State is not required to provide written notice in order for notice to be "reasonable." See Chimney v. State, 6 S.W.3d 681, 699 (Tex.App.-Waco 1999, pet. ref'd); Woodard v. State, 931 S.W.2d 747, 749 (Tex.App.-Waco 1996, no pet.); see also Hayden v. State, 66 S.W.3d 269, 272-73 n. 16 (Tex.Crim.App. 2001) (stating the notice required under rule 404(b) is not "formalistic" and does not have to be in writing). C. Application of Law to Facts and Harm Analysis
Jones argues that because he did not receive prior, written notice of the State's intent to introduce evidence of extraneous crimes or bad acts, the evidence was not admissible at trial. We disagree. Oral notice may satisfy the section 3(g) notice requirement. See Chimney, 6 S.W.3d at 699; Woodard, 931 S.W.2d at 749; see also Hayden, 66 S.W.3d at 273 n. 16 (Rule 404(b) does not require written notice). Yet, even assuming without deciding that the trial court erred, Jones suffered no harm. See Roethel, 80 S.W.3d at 282. Error in admitting evidence with insufficient notice under article 37.70, section 3(g) is non-constitutional error. See Apolinar v. State, 106 S.W.3d 407, 414 (Tex.App.-Houston [1st Dist.] 2003, aff'd on other grounds, 155 S.W.3d 184 (Tex.Crim.App. 2005)); Roethel, 80 S.W.3d at 281. A non-constitutional harm analysis for statutory violations is performed under Texas Rule of Appellate Procedure Rule 44.2(b). See Tex. R. App. P. 44.2(b); Gray v. State, 159 S.W.3d 95, 97-98 (Tex.Crim.App. 2005). We assess harm from a violation of the notice provision of article 37.07, section 3(g), against the statute's intended purpose. See Tex. Code Crim. Proc. Ann. art. 37.07 § 3(g); Roethel, 80 S.W.3d at 281. The purpose of article 37.07, section 3(g) is to avoid unfair surprise and to enable a defendant to prepare to answer the extraneous offense evidence. See Wallace v. State, 135 S.W.3d 114, 119 (Tex.App.-Tyler 2004, no pet.); Apolinar, 106 S.W.3d at 414; Roethel, 80 S.W.3d at 282; Nance v. State, 946 S.W.2d 490, 493 (Tex.App.-Fort Worth 1997, pet. ref'd). This analysis requires examining the record to determine whether the deficient notice resulted from prosecutorial bad faith or prevented the defendant from preparing for trial. See Wallace, 135 S.W.3d at 118; Roethel, 80 S.W.3d at 282. To determine whether the defendant was unable to prepare for trial, appellate courts look to whether the defendant was surprised by the substance of the testimony and whether that affected his ability to prepare cross-examination or mitigating evidence. See Wallace, 135 S.W.3d at 118-19; Roethel, 80 S.W.3d at 282. Here, Jones does not argue the admission of evidence of his prior offenses was the result of prosecutorial bad faith, nor does he argue unfair surprise. See Wallace, 135 S.W.3d at 118-19 ; Roethel, 80 S.W.3d at 282; Nance, 946 S.W.2d at 493. Jones made a timely request for notice. The record reflects the parties participated in "informal" discovery one month prior to trial, where the State provided Jones with written documentation of its evidence of extraneous offenses. The prosecutor and Jones's counsel discussed the extraneous offense evidence the State intended to offer "in great detail." Jones did not contest he was provided with copies of documents and orally communicated information about extraneous offense evidence the State intended to offer. See Chimney, 6 S.W.3d at 699. We conclude Jones did not suffer harm because he claims no surprise as to the testimony and he does not claim his ability was affected to prepare cross-examination or mitigating evidence. See Roethel, 80 S.W.3d at 282. Jones's third issue is decided against him. V. CONCLUSION
We decide all of Jones's issues against him. The trial court's judgment is affirmed.