Opinion
No. 05-08-00244-CR
Opinion Filed June 15, 2009. DO NOT PUBLISH Tex. R. App. P. 47.2.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F-0748064-Y.
OPINION
Following a plea of not guilty, appellant Wallace Earl Ridley was convicted by a jury of murder. Punishment was assessed by the jury at sixty years' confinement and a fine of $10,000. In two issues on appeal, appellant asserts (1) the evidence is factually insufficient to support the jury's implied rejection of his self-defense claim and (2) the trial court abused its discretion by allowing the prosecutor to impeach a defense witness during the punishment phase of trial with evidence of an extraneous offense of which appellant had no notice. We decide appellant's two issues against him. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Lawanda Jackson ("Jackson") testified at trial that at the time of the incident at issue, she and her eight-year-old son, Christopher, lived in an apartment with Shelton Graves at the Estelle Village apartment complex. According to Jackson, Graves made a living hooking up "illegal cable" for others and dealing drugs. Graves was nicknamed "Cable Man." Jackson testified she knew appellant as "Man" and had seen him "coming around the apartment" on more than ten occasions. According to Jackson, Graves and appellant sold drugs together. Jackson testified that on the evening of January 24, 2007, appellant came to the apartment where she lived and spoke with Graves in the living room. Jackson was in the bedroom of the apartment with the bedroom door closed. Jackson heard raised voices and came out of the bedroom and into the living room. She saw appellant standing near the front door of the apartment and Graves standing near the bedroom and bathroom doors. Both men were yelling. Graves and Jackson told appellant to get out of the apartment. According to Jackson, as appellant left the apartment, he "stuck his hand in the door and hit [Graves] in the jaw." Jackson testified Graves grabbed a gun from the back of a chair, aimed it at appellant, and pulled the trigger. However, there were no bullets in the gun because Jackson had removed them days before. Before leaving, appellant told Graves, "I'm going to do you," which Jackson understood to mean appellant was going to kill Graves. On the following night, Jackson was in the bedroom of the apartment with Christopher while Graves, appellant, and two other men, named Fred and Rob, were in the living room. Jackson heard raised voices through the closed bedroom door. Jackson testified she opened the bedroom door in order to go into the living room to see what was going on, but Graves told her to go back inside the bedroom. Jackson went back into the bedroom and closed the door. Jackson heard a gunshot and tried to open the bedroom door, but Graves was holding it closed from the other side. Jackson heard a second gunshot. After the second gunshot, Graves "laid down on the ground" and Jackson was able to open the door. She testified she saw appellant "standing over [Graves], looking, shooting-shot him in the head." Jackson called out appellant's nickname and appellant turned and fled. Subsequently, police arrived and Jackson was taken to the police station. She told police appellant killed Graves. In addition, she identified appellant in a photographic lineup. According to Jackson, the gun appellant used in the shooting was short and black. Jackson testified Graves kept a silver gun with a wooden handle in the closet of the apartment, but she did not know where the bullets were stored. On cross-examination, Jackson acknowledged a photograph admitted into evidence showed bullets stored on a shelf above the stove in the apartment. Frederick Trimble testified at trial he knew Graves and appellant and had heard they worked together. Trimble testified that on the evening of the shooting at issue, he and Robert Fisher were walking through the Estelle Village apartment complex when they heard an argument between appellant and Graves in the apartment where Jackson and Graves lived. Trimble stated he and Fisher went inside the apartment to try to diffuse the situation. Graves and appellant were in the living room of the apartment. According to Trimble, appellant pulled out a gun and tried to shoot it, but Fisher grabbed the gun from appellant. Then, according to Trimble, appellant pulled a second gun "[f]rom behind his back" and shot Graves. Trimble testified appellant told Graves, "I'm going to show you how you should have killed me." Graves fell to the ground by the bedroom door. Trimble testified Graves was "moving" as appellant walked toward him and fired two or three more shots. Then, appellant ran out the door of the apartment. According to Trimble, Jackson opened the door to the bedroom only after the shooting had stopped, and no shots were fired after Jackson opened the bedroom door. Further, Trimble testified he saw a fifth man, whom he did not know, in the living room of the apartment at the time of the shooting. Trimble testified that when police asked him if he knew anything about the shooting, he lied to them. Trimble did not tell police he had been inside the apartment when Graves was shot. Rather, he told police he had been across the street with a friend, smoking a cigarette, when he saw two men, one of whom he identified as appellant, running out of the apartment where Graves had been killed. According to Trimble, he lied because he was on parole and did not want to get involved. He testified he decided to tell the truth at trial because "[i]t was eating me up inside that, you know, I knew what happened to my friend." On cross-examination, Trimble testified a warrant issued for his arrest pursuant to a parole violation had been "lifted" one day prior to his testimony. However, Trimble stated the lifting of that warrant was not the result of any deal with the State. Robert Fisher testified that on the night of January 25, 2007, he went to the Estelle Village apartment complex to "chill out" after he got off of work. Fisher testified Trimble told him Graves had admitted trying to kill appellant the previous night. Fisher and Trimble heard a "commotion" in Graves's apartment. They entered Graves's apartment and found Graves and appellant arguing in the living room. Appellant "flinched" for a gun and Fisher took the gun from appellant and laid it on a table near where Graves was sitting. According to Fisher, Graves "kept saying stuff" to appellant. Fisher testified Graves stated he "was supposed to kill [appellant] last night." Appellant sat on the couch, crying. Then, Fisher testified, Graves said something and appellant stood up, pulled a gun from his back pocket and shot twice at Graves. According to Fisher, just before appellant pulled the trigger, he said to Graves, "'This is how you should have done it,' or something like that." Graves fell down near the bedroom. Graves did not have anything in his hand. Fisher testified appellant shot at Graves again after Graves fell. Fisher prayed over Graves's body and left. He did not talk to the police or give a statement. Terry Nash testified that at the time of the events at issue, he was employed as a general maintenance worker at the Estelle Village Apartments and was also a resident of that apartment complex. On the night of Graves's shooting, Nash testified, he was at home in his apartment when he heard someone beating on his neighbor's door. Nash recognized Jackson's voice saying, "He shot Cable Man." Nash understood "Cable Man" to be Graves. Nash ran to the apartment where Jackson and Graves lived and saw Graves lying face down in a pool of blood. Nash testified he turned Graves over and determined he could not "give him mouth-to-mouth" because Graves's jaw was wired shut due to injuries from a previous incident. Nash tried to give him "chest compressions." When police arrived, Nash was directed to sit in a police car. Nash testified he was taken to the police station, where police tested his hands for gunpowder residue and took his statement. In addition, Nash was shown a photographic lineup. According to Nash, he identified appellant as a person he had seen in the apartment complex about an hour before the shooting. Christopher Jackson ("Christopher") testified that on the night of the shooting, a fight occurred in the living room of the apartment where he lived. Christopher stated he was in the bedroom with his mother, playing a computer game. According to Christopher, Trimble and Fisher were sitting on a couch in the living room and appellant was standing by the television. Graves was holding the bedroom door shut from the outside to prevent Christopher and his mother from opening it. Christopher testified he saw appellant "get a gun out of his back pocket" and shoot Graves. Christopher stated he saw appellant shoot Graves in the head, in the arm, and "somewhere else." Christopher testified Graves let go of the bedroom door when he was shot, and Christopher and his mother were then able to open the door and go into the living room. Christopher stated appellant ran out of the apartment after shooting Graves. Christopher testified a detective came to his school and showed him two photographic lineups. Christopher identified appellant as the person who shot Graves. He testified he knew appellant because appellant had been to his house. In the second lineup, Christopher identified Trimble as another person who was in the room on the night of the shooting. Dallas police detective Paul Ellzey testified he interviewed Jackson and Nash at police headquarters on the night of the shooting. Ellzey testified that based on those interviews, he identified appellant as a possible suspect, prepared photographic lineups, and presented them to Jackson and Nash. According to Ellzey, both Jackson and Nash identified appellant in the photographic lineups. Ellzey testified Jackson told him appellant had shot and killed Graves. Dallas police officer Robert Quirk testified he presented two photographic lineups to Christopher in a conference room at Christopher's school. In one lineup, Christopher identified Trimble. In the other lineup, Christopher identified appellant. According to Quirk, Christopher pointed to the photograph of appellant and stated, "I recognize him. That one, he is Man. He shot my dad." Dr. Sheila Spotswood, a Dallas County medical examiner, testified an autopsy on Graves showed he died as a result of multiple gunshot wounds. According to Spotswood, Graves was shot four times. The bullet trajectory path for each wound was "back to front." Spotswood stated, "[Graves] was shot in the back, and at the time of the shots his back was towards the gun." In Spotswood's opinion, Graves's wounds were not typical of a self-defense scenario. Toxicology tests showed the presence of marijuana, cocaine, and phencyclidine (PCP) in Graves's blood. Appellant testified he, Trimble, Fisher, and Graves had been selling drugs out of the Estelle Village apartment complex for two or three months prior to the shooting. One of the locations from which they sold drugs was the apartment occupied by Graves and Jackson. The day before the shooting, appellant, Trimble, Fisher, Graves, Jackson, and Christopher were all in the apartment. Appellant testified he and Graves got into an argument when appellant made fun of the fact Graves had a broken jaw. As appellant was walking toward the door to leave, Graves came up behind him and pushed him. Appellant turned and punched Graves, who fell down. Appellant testified that as he continued out of the apartment on his way to his car, he heard, "man, watch out." According to appellant, he turned and saw Graves pointing a silver gun at his face. Graves was "clicking" the gun, but it was not loaded. Appellant testified he was scared and believed Graves intended to kill him. Appellant testified he ran to his car as Graves "went back in the house to get the other gun." According to appellant, Trimble called him the following day and asked him to return to the apartment. Appellant stated, "[Trimble] said we were going to try to squash all of this so we can all get back together and make money together." Appellant testified when he arrived at the apartment, Graves, Jackson, Christopher, Trimble, and Fisher were there. Graves told Jackson and Christopher to go into the bedroom so he could "handle some business." Appellant sat down on the couch, where Fisher was already sitting. Appellant testified he asked Graves whether "we gonna squash it and everything," and Graves answered, "yeah." According to appellant, Graves was smoking drugs and "started getting all loud." Appellant testified Graves told him "I should have done you, boom." Appellant grabbed a gun from a nearby table, but Fisher took it away from him. Fisher set the gun on a table. Appellant testified Graves continued taunting him. Appellant became emotional and began crying. Appellant testified he looked up and saw Graves "creeping" toward him with the gun Fisher had set on the table. Appellant stated he grabbed another gun, which he had put in his back pocket earlier, and "just started shooting." Appellant testified he was sitting down when he shot Graves. According to appellant, Graves was not near the bedroom door at the time of the shooting and the bedroom door remained closed during the entire incident. Appellant testified he started firing before Graves could raise his gun. Appellant stated, "I was thinking about the night before. It was either going to be him or me." According to appellant, he did not say anything to Graves at the time of the shooting. Further, appellant did not recall a pause in the shooting. Immediately afterward, appellant testified, he dropped the gun and ran because he was scared. Appellant testified he could not explain why all four of the bullets he fired struck Graves from the back. He stated he did not know what happened to the gun. Appellant testified he turned himself in two days later "[b]ecause I seen myself in the newspaper, and I'm like this ain't the way to go." According to appellant, ". . . I was defending myself. I could have been in that position. I could have been gone. I was just defending myself. It wasn't nothing else but defense to me." The trial court instructed the jury regarding self-defense. Further, the jury charge stated the jury should acquit appellant if they found the requisite elements regarding self-defense or if they had a reasonable doubt as to whether or not appellant was acting in self-defense. After the jury found appellant guilty of murder, the punishment phase of trial commenced. Witnesses called by appellant included Jelisha Wright, the mother of appellant's daughter. On direct examination, Wright testified in part she had never known appellant to be violent. On cross-examination, Wright was asked by the prosecutor whether appellant told her to lie on the stand. She answered, "No." Then, the prosecutor asked Wright, "Is it your testimony under oath [appellant] never told you to lie for him when you took the stand?" Wright answered, "Yes." The portion of the record following that answer reads as follows:[Prosecutor]:
(Indicating)
[Defense Counsel]:
Objection, Your Honor, to publication of this information. Number 1, it is inflammatory, prejudicial. 2, this is information that seems to be should have been shared with Defense counsel during the discovery process and we have not had any information on this. We did, in fact, ask for all-
[Trial Court]: Let me see the lawyers up here.(Discussion at the bench, off the record) Based on subsequent comments in the record by the judge and attorneys for the parties, it is apparent that at the point where the record reads "(Indicating)," the State played a recording for the jury. The record does not reflect such recording was admitted into evidence. Following the off-the-record discussion at the bench indicated above, the objection of appellant's counsel was overruled. Wright testified she recognized appellant's voice. Then, appellant's counsel renewed his objection and requested a hearing outside the presence of the jury. Outside the jury's presence, counsel for appellant argued he had specifically asked for "all information regarding video, electronic recordings, writings, statements of that nature." Appellant's counsel stated, ". . . [H]ad we known that this type of information was compiled and obtained by the State, then our strategic approach toward this particular aspect of this phase of the proceedings would have been different than the track that we are on right now." Further, appellant's counsel objected on the basis the information at issue was (1) a surprise, (2) inflammatory, and (3) prejudicial. The trial court overruled the objections of appellant's counsel. In addition, the trial court stated, "I will allow broad latitude to you, sir, as far as bringing out the fact you asked for this and were not given it." In the presence of the jury, the State asked Wright whether it was true appellant told Wright to lie to the district attorney. After an objection by appellant, which was overruled, Wright testified she did not remember whether that happened. Then, the State asked Wright whether defendant told her, "I hope you be lying like that at my court date." After another objection by appellant, which was overruled, Wright testified she did not remember appellant telling her that. Prior to beginning his redirect examination of Wright, counsel for appellant renewed his objection "to all that has taken place." In addition, counsel for appellant requested a mistrial. Counsel for appellant stated to the trial court, "We asked for this information prior to the onset, before we selected the jury. You ruled that this information was supposed to be provided for us and it was not." The trial court stated, "I didn't make that ruling. Overruled and mistrial denied." On redirect examination, appellant's counsel questioned Wright as follows:
Q. Now, you have heard these recordings. Do you recall any of these recordings that [the State] just played?
A. No.
Q. Did you intentionally or willfully come to this court to try to mislead anybody in this case?
A. No, I didn't.
Q. Are you now telling the truth, as best as you can recall, with regards to your testimony today?
A. Yes, I am.
Q. And to your knowledge, to your recollection, did my client ask you to lie in his behalf for this case?
A. Not that I remember.
Q. Would you lie for him in this case?
A. No.Following his sentencing, appellant filed a timely motion for new trial. That motion was overruled by the trial court. This appeal timely followed.
II. SELF-DEFENSE
In his first issue, appellant contends the evidence is factually insufficient to support the jury's implied rejection of his self-defense claim. According to appellant, the facts establish he shot Graves only to defend himself. Appellant asserts the State's evidence does not refute the testimony that appellant acted only in self-defense. Therefore, appellant argues, the State failed in its burden of persuasion. The State responds the evidence is factually sufficient to support the jury's implied rejection of appellant's theory of self-defense. The State argues the jury was free to believe the State's witnesses and reject appellant's testimony he thought the victim was approaching him with a gun.A. Standard of Review
In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial, whether properly or improperly admitted. See Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Berry, 233 S.W.3d at 854; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417. We give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in the better position to judge. See Lancon, 253 S.W.3d at 706. In reviewing a challenge to the factual sufficiency of the evidence to support a jury's rejection of a defense to the prosecution, we use the same standard used in reviewing the factual sufficiency of the evidence to support a verdict of guilt, looking at the sufficiency of the evidence to support both the verdict and the rejection of the defense. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003).B. Applicable Law
A person commits murder when he intentionally or knowingly causes the death of an individual. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). As applicable to this case, a person is justified in using deadly force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against another's use or attempted use of unlawful force and a reasonable person in the defendant's situation would not have retreated. See Act of May 12, 1995, 74th Leg., R.S., ch. 190, § 1, 1995 Tex. Gen. Laws 1919; Act of May 16, 1995, 74th Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws 2141, 2142 (both amended 2007) (current versions at Tex. Penal Code Ann. §§ 9.31, 9.32 (Vernon Supp. 2008)). Deadly force is defined as "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury." Tex. Penal Code Ann. § 9.01(3) (Vernon Supp. 2008). A "reasonable belief" is one that would be held by an ordinary and prudent man in the same circumstances as the actor. Id. § 1.07(a)(42). A person has the right to defend against apparent danger to the same extent as actual danger, provided he acts upon a reasonable apprehension of danger as it appears to him at the time. See Dyson v. State, 672 S.W.2d 460, 463 (Tex.Crim.App. 1984). The defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani, 97 S.W.3d at 594; Lee v. State, 259 S.W.3d 785, 791 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). Once the defendant produces such evidence, the State has the burden of persuasion in disproving self-defense. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App. 1991). The State's burden of persuasion does not require it to produce evidence refuting the self-defense claim. Id. at 913. Rather, the burden requires the State to prove its case beyond a reasonable doubt. Id. The issue of self-defense is a fact issue for the jury. Id. at 913-14. A jury verdict of guilty is an implicit finding rejecting an accused's self-defense theory. Id. at 914.C. Application of Law to Facts
It is undisputed appellant shot and killed Graves. However, appellant argues the jury's implied rejection of appellant's self-defense claim is unwarranted under the facts. Appellant contends his claim of self-defense was dependent not just on the events of the night of the shooting, but also on the background evidence of the relationship between the parties, the criminal enterprise in which they were engaged, the events of the night before the shooting, and the events after the shooting. In addition, appellant asserts "much of the State's evidence is suspect as its witnesses lacked credibility." Appellant asserts it is undisputed that on the night before the shooting, Graves aimed a gun at him and pulled the trigger. Appellant testified he believed it was Graves's intention to kill him at that time. Further, appellant asserts Graves (1) told Trimble he had attempted to kill appellant the night before the shooting, (2) had a propensity for violence as evidenced by his broken jaw, and (3) was smoking drugs before the shooting and was in an agitated state. According to appellant, retreat "was not an option" because (1) Graves was so agitated appellant could have been in danger if he tried to leave, just as he had been the previous evening, and (2) "at the exact moment of the shooting, Graves, who had attempted to kill [a]ppellant the night before, was sneaking up on [a]ppellant with a gun in his hand." Appellant contends it was unreasonable for the jury to have rejected the "clear evidence of apparent danger" because appellant either saw Graves with a gun or reasonably believed Graves had a gun. Further, appellant asserts he and Trimble testified the bedroom door was closed during the shooting, and Fisher gave no testimony regarding the bedroom door. Therefore, according to appellant, "the weight of the evidence is that neither Jackson nor Christopher could have seen the shooting." Finally, appellant asserts that after the shooting, he turned himself in to police. Appellant asserts Trimble and Fisher, two of the State's witnesses, did not come forward to police, and Trimble gave testimony only after an arrest warrant for a parole violation was withdrawn. However, the record also contains undisputed evidence Graves was shot four times in the back. Other than appellant's own testimony, there is no evidence in the record that at the time of the shooting, Graves was walking toward appellant or had a gun in his hand. Jackson testified that when she opened the bedroom door, Graves was lying on the ground. According to Jackson, appellant was "standing over [Graves], looking, shooting-shot him in the head." After the shooting, appellant fled. The jury's decision to accept or reject appellant's claim of self-defense ultimately hinged on the credibility of the witnesses. By finding appellant guilty, the jury implicitly rejected appellant's self-defense theory. See Saxton, 804 S.W.2d at 914. It was within the jury's province to resolve the disputed versions of the events in question. See Lancon, 253 S.W.3d at 706; Lee, 259 S.W.3d at 792-93 (factual sufficiency challenge regarding jury's rejection of self-defense claim where record contained evidence victim was facing away from appellant when approached). The jury was free to accept or reject any or all of the evidence presented by either side. See Saxton, 804 S.W.2d at 914; Lee, 259 S.W.3d at 792. Thus, the jury could have chosen to disbelieve the testimony supporting appellant's self-defense claim and believe other testimony that did not support appellant's claim of self-defense. See Lee, 259 S.W.3d at 792 (jury could have chosen to believe testimony of witnesses who relayed facts showing appellant did not act in response to immediate threat). Viewing all of the evidence in a neutral light, we cannot conclude the evidence supporting the jury's rejection of appellant's self-defense claim is so weak that the verdict is clearly wrong and manifestly unjust. See Berry, 233 S.W.3d at 854; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417. Further, we cannot conclude with some objective basis in the record the great weight and preponderance of the evidence contradicts the jury's verdict. See Berry, 233 S.W.3d at 854; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417. Therefore, we conclude the evidence is factually sufficient to support the jury's implied rejection of appellant's self-defense claim. See Zuliani, 97 S.W.3d at 595. Appellant's first issue is decided against him.III. NOTICE OF EVIDENCE OF EXTRANEOUS OFFENSE
In his second issue, appellant contends the trial court abused its discretion by allowing the prosecutor to impeach defense witness Wright during the punishment phase of trial with evidence of an extraneous offense of which appellant had no notice. According to appellant, despite his timely request for notice of extraneous offenses, the State failed to provide notice of the alleged bad act at issue, which resulted in unfair surprise to the defense. Appellant argues that had defense counsel been given such notice, his entire strategy at punishment could have been revised. Further, appellant asserts the error is not harmless because there is a high probability it affected the "hefty" punishment assessed by the jury. The State responds the trial court did not abuse its discretion by allowing the State to cross-examine Wright during punishment regarding appellant's extraneous bad acts because appellant never requested notice of the State's intention to introduce such evidence. Alternatively, the State asserts any alleged error was harmless.A. Standard of Review
An appellate court reviews a trial court's ruling on the admissibility of evidence under an abuse of discretion standard of review. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). The trial court's ruling should be upheld if it is within the zone of reasonable disagreement. See id. Further, the trial court's ruling will be upheld if it is correct on any theory of law applicable to the case. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990).B. Applicable Law
Section 3(a)(1) of article 37.07 of the Texas Code of Criminal Procedure provides in relevant partRegardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state . . . as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2008). Section 3(g) of article 37.07 provides in relevant part
On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. . . . The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.Id. art. 37.07, § 3(g). Under rule 404(b) of the Texas Rules of Evidence,
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.Tex. R. Evid. 404(b). The erroneous admission or exclusion of evidence is nonconstitutional error governed by Texas Rule of Appellate Procedure 44.2(b). See Gray v. State, 159 S.W.3d 95, 97-98 (Tex.Crim.App. 2005); Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001). Under rule 44.2, nonconstitutional error that does not affect the substantial rights of the defendant must be disregarded by the appellate court. See Tex. R. App. P. 44.2. A substantial right is affected when the error has a "substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). "In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case." Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000).