Summary
finding notice that failed to specify county or state in which alleged offense occurred and failed to name victim inadequate under article 37.07, section 3(g)
Summary of this case from Mitchell v. CoselliOpinion
No. 05-02-01085-CR
Opinion issued May 27, 2003 Do Not Publish
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-74732-HT AFFIRMED
OPINION
Wendell Lee Wheeler appeals his conviction for aggravated sexual assault of a child. Appellant pleaded guilty before a jury. The jury sentenced appellant to forty-five years' confinement and assessed a $10,000 fine. In five points of error, appellant complains the trial court erred in (1) overruling appellant's motion for a mistrial based on inadmissible hearsay; (2) admitting evidence of an extraneous offense because the State's notice of intent to offer such evidence was insufficient; (3) admitting into evidence a firearms transaction report and statements therein because the State did not give notice of its intent to present such evidence; (4) admitting evidence of the purchase of a firearm by the appellant because the probative value of that evidence was outweighed by the unfair prejudice; and (5) in failing to instruct the jury that its punishment verdict must be based on the offense of conviction and not on extraneous conduct. We affirm the judgment of the trial court.
The State and appellant had agreed prior to trial that appellant would plead guilty in exchange for the State making certain evidentiary concessions; however, there was no agreement as to punishment.
Factual Background
In February 2001, appellant sexually molested O.P., an eight year old child living in the neighborhood where appellant was staying. The child's mother notified the Dallas police and appellant was indicted for aggravated sexual assault of a child under the age of fourteen. Prior to his arrest, appellant fled to Oklahoma, where he purchased a firearm. After placing a telephone call to his son requesting his passport, appellant was eventually located in North Carolina, where he was arrested and returned to Dallas. Appellant pleaded guilty before a jury to sexually assaulting O.P. After hearing evidence, the jury assessed punishment at forty-five years' confinement and a $10,000 fine.Mistrial
In his first point of error, appellant complains the trial court erred in denying his motion for a mistrial based on inadmissible hearsay about appellant's purchase of a weapon. At trial, Michelle Pierce, O.P.'s mother, testified that a detective told her appellant had purchased a weapon and threatened people. Pierce later testified about her fear for her child's safety at home and made reference to being told by a detective about weaponry. No further hearsay was elicited by the State. The trial court sustained appellant's hearsay objection to each statement and instructed the jury to disregard the inadmissible hearsay statements but denied appellant's requests for a mistrial. We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). Mistrial is a device used to halt trial proceedings when the error is so prejudicial that expenditure of further time and expense would be wasteful and futile. See id. To determine whether a given error necessitates a mistrial, we must examine the particular facts of the case. See id. A mistrial is required only when the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). After reviewing the record, we conclude the actions of the State in eliciting the objectionable testimony were not clearly calculated to inflame the minds of the jury. Additionally, the hearsay testimony regarding the firearm purchase is not of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. The appellant objected to the testimony, obtained a favorable ruling and an instruction to disregard the testimony from the trial court. Such instructions are ordinarily considered sufficient to cure error associated with an improper question and answer. See Martinez v. State, 17 S.W.3d 677, 689 (Tex.Crim.App. 2000). We conclude the instruction to disregard cured any error in the admission of hearsay about appellant's purchasing a weapon. We overrule appellant's first point of error.Extraneous Offense
In points of error two and three, appellant complains of the trial court's admission of evidence about appellant's purchase of a firearm because the State's notice of intent to offer the evidence was insufficient or the State failed entirely to notify the appellant of its intent to offer the evidence. Appellant's request and motion seeking notice of the State's intent to introduce evidence of extraneous offenses and bad acts was filed on January 25, 2002. The State filed its notice of extraneous offenses on March 27, 2002. This notice listed five particular acts or series of acts, including the following:4.
On or about July 12, 2001, Defendant purchased a firearm from a pawn shop. He told the clerk in the store that he was buying the gun to kill a police officer.At trial, the State introduced evidence that appellant purchased a gun on July 10, 2001 from a pawn shop in Oklahoma. Appellant objected to the introduction of this evidence on the ground that the State's notice of extraneous offenses relevant to this evidence was insufficient. In particular, appellant asserted the notice failed to state the date of the offense, the county where the offense took place, and the name of the victim. Appellant further objected to the introduction of the firearms transaction record regarding the purchase of the firearm on July 10, 2001 on the ground that the document represents, or is evidence of, an extraneous offense about which the appellant did not receive notice. The code of criminal procedure provides the notice to be given when the State intends to introduce evidence of an extraneous crime or bad act that has not resulted in a final conviction. Section 3(g) provides:
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. 2003). It is undisputed that the notice given by the State failed to specify the county in which the alleged crime or bad act occurred and failed to name the alleged victim of the crime or bad act. To that extent, the notice given was inadequate with respect to the appellant's purchase of the firearm and the evidence was inadmissible. With respect to the introduction of the firearms transaction record, appellant asserts its introduction and use at trial was error because the State failed to give any notice at all of its intent to use such evidence. More specifically, appellant argues the notice was insufficient to support the introduction of evidence that appellant purchased a firearm while a fugitive from justice or by a person who is an abuser of or addicted to a controlled substance. Additionally, appellant argues the notice was insufficient to support the introduction of evidence that appellant made a false statement on the firearm transaction record. These acts, appellant argues, constituted violations of federal law. See 18 U.S.C. § 922(g) and 1001. However, the State gave notice of its intent to introduce evidence relating to appellant's purchase of a firearm and provided appellant with a copy of the firearm transaction record prior to trial. The purpose of the notice requirement is to prevent unfair surprise to a defendant. Burling v. State, 83 S.W.3d 199, 202 (Tex.App.-Fort Worth 2002, pet. ref'd); Cole v. State, 987 S.W.2d 893, 897 (Tex.App.-Fort Worth 1998, pet. ref'd). By giving appellant notice of its intent to introduce evidence of appellant's purchase of the firearm and by providing appellant with a copy of the firearm transaction record prior to trial, we conclude appellant was provided with some notice of the State's intent to introduce the evidence. However, the firearm transaction record and the notice given by the State, as discussed above, failed to specify the county, or even the state, in which the alleged crime or bad act occurred and failed to identify the victim. Because the State failed to provide reasonable notice as required by statute, the notice was inadequate and the evidence was inadmissible. See Roethel v. State, 80 S.W.3d 276, 280-81 (Tex.App.-Austin 2002, no pet.). Our inquiry, however, does not end here. We must now determine if the erroneous admission of such evidence was harmful error. The erroneous admission of an extraneous offense does not constitute constitutional error. See Johnson v. State, 85 S.W.3d 726, 729 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Avila v. State, 18 S.W.3d 736, 741-42 (Tex.App.-San Antonio 2000, no pet.). Rule of appellate procedure 44.2(b) provides that any error, other than constitutional error, "that does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2(b). We disregard the erroneous admission of evidence if it did not adversely affect the jury's verdict, or had only a slight effect on the jury's verdict. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). The punishment range for the offense charged was five to ninety-nine years and a fine not exceeding $10,000. Tex. Pen. Code Ann. §§ 12.32, 22.021. The jury assessed punishment at forty-five years' confinement and a $10,000 fine. Appellant pleaded guilty to sexually assaulting an eight year old child and there was evidence that appellant assaulted his own daughter over one hundred times from the time she was three years old until she was ten years old. There was also evidence that appellant used and was addicted to illegal drugs. Additionally, neither the purchase of the firearm nor the untrue answers to the questions on the firearm transaction record was emphasized by the State in closing arguments. When the complained of evidence is examined in combination with all of the other evidence presented by the State, we conclude any error was harmless. See Umoja v. State, 965 S.W.2d 3, 7-12 (Tex.App.-Fort Worth 1998, no pet.). We overrule appellant's points of error two and three.
Rule 403 Balancing Test
In point of error number four, appellant argues the admission of the evidence about the purchase of the firearm was error because the probative value of that evidence was outweighed by its unfair prejudice. A trial court has broad discretion in determining the admissibility of evidence presented at the punishment phase of trial. See Moreno v. State, 1 S.W.3d 846, 861 (Tex.App.-Corpus Christi 1999, pet. ref'd). The code of criminal procedure permits trial courts to admit evidence deemed relevant to sentencing, including evidence of other crimes or bad acts. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2002); Tracy v. State, 14 S.W.3d 820, 825 (Tex.App.-Dallas 2000, pet. ref'd). At the punishment hearing, relevant evidence is that which assists the fact finder in determining the appropriate sentence given a particular defendant in the circumstances presented. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999). Even relevant evidence, however, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex.R.Evid. 403. As used in rule 403, "unfair prejudice" means the undue tendency of the evidence to suggest a decision on an improper basis. See Rogers, 991 S.W.2d at 266. We will not disturb a trial court's determination regarding the admissibility of relevant evidence unless an abuse of discretion has been shown. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). During the punishment hearing, William Henning, the owner of a pawn shop in Lexington, Oklahoma, testified that appellant purchased a rifle on July 10, 2002. Through Henning, the State offered the firearm transaction report. This report included a statement by the appellant that he was not a fugitive and not a drug abuser or addicted to drugs. There was also evidence, admitted without objection, that appellant had been addicted to drugs and had been admitted to rehabilitation centers on several occasions, at least once outside the country. There was also evidence that, after the assault occurred, appellant called his son to request his passport so he could leave the country. We conclude this evidence could have assisted the fact finder in determining the appropriate sentence to be given appellant in the circumstances presented and was relevant to whether appellant should be given probation. We also conclude the probative value of the evidence was not outweighed by "unfair" prejudice. The trial court did not abuse its discretion is admitting the evidence and appellant's point of error number four is overruled.Jury Charge
In point of error number five, appellant asserts the trial court erred in not instructing the jury that its punishment verdict must be based on the offense of conviction and not on extraneous conduct. Appellant submitted seven proposed instructions to the trial court and requested that each instruction be included in the jury charge. The requested charges were as follows:1.
In considering evidence of other crimes or wrongful acts other than that charged in the indictment, you are instructed that you may not aggregate punishment by, for example, first separately determining the punishment you find appropriate for the offense charged in the indictment, then separately determining punishment for each of the other crimes or bad acts you found the defendant to have committed beyond a reasonable doubt, then finally adding the sum of those punishments.
2.
In considering evidence of other crimes or wrongful acts other than that charged in the indictment, you are instructed that you may not aggregate punishment by, for example, first separately determining the punishment you find appropriate for the offense charged in the indictment, then separately determining punishment for each of the other crimes or bad acts you found the defendant to have committed beyond a reasonable doubt, then finally adding the sum of those punishments for your punishment verdict. You are to determine the punishment for the offense on trial only, but you may take into consideration evidence of the other matters only to assist you, if it does, in making that determination.
3.
You have heard evidence of sexual conduct between the defendant and Wendy Curtis. You are permitted to hear this evidence to help you in determining defendant's punishment for the crime charged in the indictment alleging sexual conduct between him and O.P. [name omitted], if it does, but you may not consider such evidence unless you first find and believe beyond a reasonable doubt that the defendant committed such conduct. Even then you may not punish the defendant for the conduct between him and Wendy Curtis, but only for the case on trial.
4.
You are instructed that certain evidence was admitted before you about criminal conduct or action attributed to the defendant other than the crime charged in the indictment. You may not consider such evidence for any purpose unless you first find and believe from the evidence beyond a reasonable doubt that the defendant committed such other offense or offenses or actions, and even then you may only consider such evidence to aid you, if it does aid you, in determining the punishment in the case on trial and for no other purpose.
5.
You have heard evidence of sexual conduct between the defendant and Wendy Curtis. You are permitted to hear this evidence to help you in determining defendant's punishment for the crime charged in the indictment alleging sexual conduct between him and O.P. [name omitted], if it does, but you may not consider such evidence unless you first find and believe beyond a reasonable doubt that the defendant committed such conduct. Even then you may not punish the defendant for the conduct between him and Wendy Curtis but only for the case on trial.
6.
You have heard evidence of crimes and acts attributed to the defendant other than the crime charged by indictment in this case. You are permitted to hear this evidence to help you in deciding the punishment in the instant case on trial, if it does help you. However, those other matters are not on trial, defendant has not pled guilty to them, and even if you believe the State has proved them beyond a reasonable doubt, you may not in this case assess punishment for them but only for the offense charged in this case.
7.
You are instructed that certain evidence was admitted before you about criminal conduct or actions attributed to the defendant other than the crime charged in the indictment. You may not consider such evidence for any purpose unless you first find and believe from the evidence beyond a reasonable doubt that the defendant committed such other offense or offenses or actions, and even then you may only consider such evidence to aid you, if it does aid you, in determining the punishment in the case on trial and for no other purpose. The trial court refused these requested instructions and included the following instruction in the charge: You may consider evidence of an extraneous crime or bad acts in assessing punishment even if the defendant has not yet been charged with or finally convicted of the crime. However, you may consider such evidence only if the extraneous crime or bad act has been shown by the State beyond a reasonable doubt to have been committed by the defendant. The prosecution does not have to prove an extraneous crime or bad act beyond all possible doubt. The prosecution's proof must exclude all reasonable doubt concerning the extraneous crime or bad act. No other instructions were included in the charge regarding the jury's consideration of extraneous offenses.The State argues, and we agree, that the court's charge complied with the requirements of article 37.07, § 3(a)(1). Tex. Code Crim.Proc.Ann. art. 37.07, § 3(a)(1). "Prior crimes or bad acts are introduced to provide additional information which the jury may use to determine what sentence the defendant should receive. The statute requires that such evidence may not be considered in assessing punishment until the fact-finder is satisfied beyond a reasonable doubt that these prior acts are attributable to the defendant. Once this requirement is met, the fact-finder may use the evidence however it chooses in assessing punishment." Fields v. State, 1 S.W.3d 687, 688 (Tex.Crim.App. 1999) (emphasis in original). The instructions requested by the appellant would have improperly restricted the jury's consideration and use of the extraneous acts evidence. We conclude the trial court did not err in refusing the requested instructions. We overrule appellant's point of error number five. We affirm the judgment of the trial court.