Cephus, Ronald Darnell v. State

Opinion

Affirmed and Memorandum Opinion filed October 10, 2006

Affirmed and Memorandum Opinion filed October 10, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00681-CR

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RONALD DARNELL CEPHUS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1003667

M E M O R A N D U M   O P I N I O N

Challenging his conviction for the offense of robbery, enhanced by a prior conviction of aggravated robbery, appellant contends, in one issue, that the trial court erred in admitting extraneousBoffense evidence in violation of article 37.07 of the Texas Code of Criminal Procedure.  We affirm.

I.  Factual and Procedural Background

On August 14, 2004, the complainant, Dianna Ortiz, and her friend, Melanie Jiannuezzi met at a local clothing store to shop.  Once they finished shopping, the two women left Ortiz=s car in the shopping center parking lot and drove Jiannuezzi=s car to another location to meet a friend.  Around 1:00 a.m., the women returned to Ortiz=s car.  When Ortiz began to transfer her shopping bags from Jiannuezzi=s car to her own, a man they did not know drove up in a dark colored Thunderbird automobile.  The man, whom both women later identified as appellant, stopped directly behind the womens= parked vehicles.  Appellant exited his vehicle, and repeatedly yelled, A B----, you know what you did.@  Ortiz and Jiannuezzi tried to run away, but appellant caught Ortiz and threw her down onto the ground.  Appellant then took her bags and purse, and got back into his vehicle and sped away.  Beaten and bruised, Ortiz left the parking lot in her own vehicle.  She saw a police officer about five minutes after leaving the parking lot.  Ortiz stopped the police officer and explained what had happened.  She then stayed with the officer until her father arrived to drive her home. 

Both Ortiz and Jiannuezzi positively identified appellant as the perpetrator.  Appellant was arrested and charged by indictment with the offense of robbery, enhanced by a prior conviction for aggravated robbery.  Approximately three months before trial, the State filed a notice of intention to use extraneous offenses, which included three prior convictions.

During the punishment phase of trial, appellant stipulated that he had three prior felony convictions for the offenses of aggravated robbery, robbery, and credit card abuse.  The victims of the two robberies for which appellant had been convicted testified during the punishment phase.  In addition, the State also presented evidence of an unadjudicated offense relating to a robbery that occurred at a discount store in July of 2004, one month before the instant offense.  The complainant in the case, Christina Salazar testified that, appellant approached her in the store parking lot and said, Agive me your purse, b----.@  According to Salazar, appellant then grabbed her purse from the shopping basket and fled.  Salazar=s daughter, Mary Thompson, was a witness to that robbery and also testified.  That offense was tried shortly before the trial of the instant case and resulted in a hung jury.   

In the instant case, the jury found appellant guilty of the charged offense, and found the allegations in the enhancement paragraphs to be true.  The jury sentenced appellant to seventy-five years= confinement in the Texas Department of Criminal Justice, Institutional Division, and assessed a fine of $7500.00. 

II. Analysis

Appellant claims the trial court erred in the punishment phase of the trial by allowing Christina Salazar and Mary Thompson to testify about an unadjudicated extraneous offense because the State had not given adequate notice under Code of Criminal Procedure article 37.07, section (3)(g).  This statute reads:

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.  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).  The trial court has broad discretion to admit or exclude extraneous‑offense evidence.  See Brooks v. State, 76 S.W.3d 426, 435 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (applying this standard to admission of extraneous‑offense evidence over objection based on article 37.07, section 3(g)=s notice requirements).

If the trial court erred in admitting the testimony in dispute, the error is harmless.  Error in admitting evidence due to insufficient notice under article 37.07, section 3(g) is non‑constitutional error.  See Roethel v. State, 80 S.W.3d 276, 281 (Tex. App.CAustin 2002, no pet.) (concluding that error in admitting extraneous‑offense evidence over objection based on article 37.07, section 3(g)=s notice requirement is subject to rule‑44.2(b) harmless‑error analysis); Webb v. State, 36 S.W.3d 164, 178 (Tex. App.CHouston [14 Dist.] 2000, pet. ref=d).  We must disregard any such error that does not affect a substantial right. Tex. R. App. P. 44.2(b).  An error affects a defendant=s substantial rights when the error had a substantial and injurious effect or influence on the jury=s verdict.  King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.1997).  If the error had no or only a slight influence on the verdict, the error is harmless.  See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

The statute=s purpose is to avoid unfair surprise and to enable the defendant to prepare to answer the extraneous‑offense evidence.  See Roethel, 80 S.W.3d at 282; Nance v. State, 946 S.W.2d 490, 493 (Tex. App.CFort Worth 1997, pet. ref=d); See Wagner v. State, Nos. 14‑01‑00392‑CR, 14‑01‑00393‑CR, 14‑01‑00394, 2002 WL 31662410, at *5 (Tex. App.CHouston [14 Dist.] Nov. 27, 200, pet. ref=d) (not designated for publication).  To determine harm in light of that purpose, we analyze whether and how the notice deficiency affected appellant=s ability to prepare for the evidence.  Roethel, 80 S.W.3d at 281‑82.  The Austin Court of Appeals has stated the test as follows: the appellate court examines the record to determine whether the deficient notice Aresulted from prosecutorial bad faith@ or Aprevented the defendant from preparing for trial.@  The latter inquiry includes whether the defendant was surprised by the substance of the evidence and whether the lack of notice affected his ability to prepare cross‑examination or mitigating evidence.  Id. at 282.

We find no indication of bad faith in the State=s failure to provide notice of the extraneous offense.  Although the State=s notice did not meet the requirements of article 37.07 ' 3(g), there is no indication from the record that the omission was intended to mislead appellant or prevent him from preparing a defense.  Nor was appellant surprised by the substance of the testimony.  The record reflects that defense counsel knew of the prior offense.  There is evidence in the record that although the trial of this offense resulted in a hung jury, the case went to trial shortly before the trial in this case and appellant cross-examined the witnesses at that time.  Although appellant is correct in asserting that simply because he might have known about the extraneous acts does not mean he has been given notice of the State=s intent to use the evidence, or that he is properly prepared to defend against them, the record does not show that appellant was unable to prepare his defense in this case or that the State=s failure to include the extraneous offense in its pre-trial notice prejudiced appellant=s ability to present his defense.  Also, there is evidence that appellant cross-examined the same witnesses in the prior trial of the extraneous offense.  

Appellant has failed to make any showing of how his defense strategy might have been different had the State notified him that it intended to offer this extraneous offense during punishment, or how his defense was Ainjuriously@ affected by the State=s failure to provide reasonable notice.  See Hernandez v. State, 176 S.W.2d 821, 825B26 (Tex. Crim. App. 2005) (concluding that erroneous admission of other‑crimes evidence, as to which state had not provided notice under rule of its intent to use in case‑in‑chief, was not Ainjurious,@ because defendant could not be said to have been surprised by the evidence or unprepared to meet it); Hindaoui v. State, No. 14-04-00836, 2006 WL 299528, at *3 (Tex. App.CHouston [14 Dist.] Feb. 09, 2006, no pet.) (not designated for publication) (concluding no harm when appellant did not show that his trial strategy would have been altered if he had received notice).  Indeed, appellant=s counsel had an adequate opportunity to cross-examine both Christina Salazar and Mary Thompson at the punishment hearing.  See McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005) (concluding that no harm resulted because, among other reasons, the defendant had an opportunity to cross-examine the witness and attempt to discredit her, and finding that had there been legitimate surprise which would have altered his trial strategy, the defendant could have requested a continuance).  In addition, appellant=s counsel, during closing argument at the punishment hearing, spent a substantial amount of time discussing the incident involving Salazar, and its differences from the instant offense, including the problems regarding identification of appellant as the assailant in this offense.  By way of contrast, the State did not emphasize the offense involving Salazar during its closing, but rather, focused on the brutality of the instant offense and appellant=s previous convictions for robbery.  See Reyes v. State, 69 S.W.3d 725, 742B43 (Tex. App.CCorpus Christi 2002, pet. ref=d) (concluding that the erroneous admission of the extraneous-offense evidence had a substantial and injurious effect on the jury=s verdict given the fact, that among other reasons, the state relied on this evidence heavily in its final argument).  Although the better practice is for the State to give notice as mandated by the Legislature, under the facts of this case, appellant was not harmed by the lack of notice.  See Wagner, 2002 WL 31662410, at *5.

Even considering the error from an overall substantive standpoint, the admission of this extraneous-offense evidence was not harmful in any other manner.  The crimes against Ortiz and Jiannuezzi were particularly violent, and the record contained other evidence demonstrating that it was not the first time appellant had been convicted of a violent crime.  Indeed, at punishment, the State also offered evidence of two other robbery convictions (one aggravated), to which appellant stipulated.  Unlike the extraneous offense involving the Salazar robbery, the instant offense and the two previous convictions involved injuries to the complainants.  The record contains ample evidence to support the sentence the jury assessed.  See Allen v. State, BS.W.3d.B, No. 2-04-358-CR, 2006 WL 2382915, at *5  (Tex. App.BFort Worth Aug. 17, 2006, no pet. h.) (concluding that the admission of the extraneous-offense evidence did not effect a substantial right because, among other reasons, the evidence that the defendant committed the charged offense was overwhelming).

The admission of the complained‑of extraneous offense, did not have a substantial and injurious effect or influence on the verdict.  See King, 953 S.W.2d at 271.  Therefore, any error by the trial court in admitting evidence of this offense was harmless.  Accordingly, we overrule appellant=s sole issue, and affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed October 10, 2006.

Panel consists of Justices Fowler, Edelman, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).