Olivo, Joe Luis v. State

• Court: Court of Appeals of Texas
• Decided: July 3, 2002
• Docket: 14-01-00955-CR
• Status: Published

Opinion

Affirmed and Opinion filed July 3, 2002

Affirmed and Opinion filed July 3, 2002.

In The

Fourteenth Court of Appeals

____________

NOS. 14-01-00953-CR

           14-01-00954-CR

           14-01-00955-CR

JOE LUIS OLIVO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause Nos. 825,288; 94-29456; 825,271

O P I N I O N

Appellant, Joe Luis Olivo, was convicted of the felony offenses of possession of marijuana and aggravated robbery.  In this appeal, appellant claims the State improperly offered evidence of an extraneous aggravated robbery during the punishment phase of trial. Appellant contends this violated his plea agreement and that the trial court erred in admitting such evidence, in refusing to allow appellant to withdraw his plea, and in denying appellant=s motion for new trial.  We affirm. 

Background and Procedural History

Appellant was charged with committing two unrelated aggravated robberies.  Claiming appellant violated the terms and conditions of his probation, the State also moved to adjudicate appellant=s guilt for a 1994 charge of felony possession of marijuana.  Appellant pled guilty to the two aggravated robbery offenses and pled true to the motion to adjudicate.  Following a punishment hearing, the trial court  assessed punishment at thirty years= confinement and a fine of $30,000 in both aggravated robbery cases. The trial court also revoked appellant=s probation, found appellant guilty of the felony offense of possession of marijuana, and assessed punishment at ten years= confinement and a $1,000 fine.  Appellant=s motion for new trial was denied by the trial court and this appeal followed.  

Evidence of Extraneous Offense

In his first point of error, appellant claims the trial court erred in allowing the State to offer evidence, during the punishment phase of trial, of an extraneous aggravated robbery offense without having provided prior notice to appellant.  We review a trial court=s decision to admit extraneous offense evidence under the abuse of discretion standard.  See Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996).

The State is only required to give notice that an extraneous offense will be offered during the punishment phase of trial if the defendant makes a timely request for notice.  See Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(g) (Vernon Supp. 2002).  The record indicates appellant filed a discovery order, but contrary to appellant=s claim, the record does not show that appellant ever requested that the State provide notice of the extraneous offenses the State intended to offer against appellant at the punishment stage of the trial.  Appellant has not shown that the State was required to provide notice.  Id; see Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998) (holding when a document is filed with the trial court, even for the specific purpose of requiring the State to provide notice of intent to offer extraneous offenses, it cannot serve as a request for notice triggering the State=s duty under article 37.07(3)(g)).

In addition, the Aextraneous offense@ evidence came about in the form of a follow-up cross-examination question to appellant after he admitted having committed aggravated robberies.^[1]  The State is not required to give notice of its intent to introduce extraneous offenses when they are elicited on cross-examination.  See Franklin v. State, 986 S.W.2d 349, 357-58 (Tex. App.CTexarkana 1999), rev=d on other grounds, 12 S.W.3d 473 (Tex. Crim. App. 2000).  Accordingly, we do not find the trial court abused its discretion and appellant=s first point of error is overruled.

Plea Agreement

Appellant=s remaining points of error allege the State=s cross-examination regarding the extraneous aggravated robbery offense violated the terms of appellant=s plea agreement with the State.  Appellant thus claims the admission of this evidence violated his right to due process and the trial court erred in refusing to allow appellant to withdraw his pleas and in denying his motion for new trial.  We reject these complaints because the record does not support appellant=s claim that his plea agreement was violated by the State.  

Appellant waived the presence of a court reporter at the hearing on his pleas. Thus  the only evidence of the terms of the plea agreement was that produced during the hearing on appellant=s motion for new trial.  At that hearing, appellant acknowledged that the plea agreement called for the State to dismiss a third aggravated robbery charge in return for his guilty pleas on the remaining charges.  Appellant further testified, however, the State agreed not to bring up the dismissed offense or Aany other new crime.@  Because there is no written plea agreement and there is no record of the plea hearing, the only evidence suggesting that the agreement regarding extraneous offenses was part of the plea agreement comes from appellant=s testimony at the motion for new trial hearing.  As the trial court is the sole judge of the appellant=s credibility at that hearing, we will not second guess the trial court=s conclusion concerning the scope of the plea agreement.  See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). 

Accordingly, appellant=s points of error are overruled. 

/s/        Leslie Brock Yates

Justice

Judgment rendered and Opinion filed July 3, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.3(b).

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^[1]           Q:  How many people did you actually rob?

A:  The ones that I=m in here for.

Q:  So that=s the only ones you=re admitting to?

A:  Those are the only ones I did.

Q:  So you=re saying every time you committed an aggravated robbery, you got caught?

A:  Yes.

Q:  So you weren=t involved with Jeffery Sowell when he robbed Beatrice Hernandez?

A:  I don=t know who Beatrice Hernandez is.

[Appellant=s trial counsel]: It=s not part of the plea bargain, Your honor.