McDonald, Robert Charles v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Majority and Concurring Opinions filed October 5, 2004

Affirmed and Majority and Concurring Opinions filed October 5, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-02-01052-CR

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ROBERT CHARLES MCDONALD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 881,725

C O N C U R R I N G O P I N I O N

The trial court admitted over appellant=s objection testimony of two extraneous offenses that appellant allegedly committed after the charged offense occurred. Appellant allegedly perpetrated these extraneous offenses on another child, who was not present when the charged offense took place. Despite appellant=s timely request, the State did not give appellant reasonable notice in advance of trial of its intent to introduce this evidence. Because these alleged extraneous offenses are not same-transaction contextual evidence, the trial court erred in admitting this evidence. However, because the record in this case shows that this error does not affect appellant=s substantial rights, the admission of the evidence was harmless. Therefore, this court is correct to overrule appellant=s third issue and affirm the judgment of the trial court.

The Extraneous Offenses

Over appellant=s objection, the trial court allowed the complainant, T.D., to testify in the guilt-innocence phase as to extraneous offenses appellant allegedly perpetrated on B.C., T.D.=s young cousin, after B.C. arrived in the apartment later in the day on which the charged offense occurred. Although the extraneous offenses to which T.D. testified occurred on the same day as the charged offense, these offenses allegedly took place after the charged offense already had been completed. Further, B.C., the alleged victim of these extraneous offenses, was not even present when the charged offense against T.D. occurred.

Although the State gave appellant reasonable notice of its intent to introduce other related extraneous offenses allegedly committed by appellant against B.C. later in the day on which the charged offense occurred, the notice provided by the State did not reasonably apprise appellant of the State=s intent to introduce the evidence that is the subject of appellant=s third issue.

Requirements to Qualify as Same-Transaction Contextual Evidence

The State argues, and the majority concludes, that no notice was necessary under Texas Rule of Evidence 404(b) because the evidence in question was same-transaction contextual evidence. See Tex. R. Evid. 404(b). Same-transaction contextual evidence is evidence of other offenses connected with the primary offense. Mayes v. State, 816 S.W.2d 79, 86 (Tex. Crim. App. 1991). To qualify as same-transaction contextual evidence, the connection must be so close that it would be difficult to adequately testify about the primary offense without mentioning the extraneous offense. Id. at 86 n.4. When, however, the facts of the primary offense can be understood on their own, notice is needed for evidence about extraneous offenses. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995).

The primary offense in this case Cappellant=s indecency with a child, T.D.C can be fully understood without testimony of the extraneous offenses in question Cappellant=s alleged indecency with B.C. This is because everything appellant was accused of having done to T.D., such as having her straddle his leg, kissing her breast, or asking to see under her dress, is fairly simple, straightforward, and capable of being understood on its own. Thus, evidence about subsequent extraneous offenses involving B.C. should not have been introduced without notice because these offenses cannot be classified as same-transaction contextual evidence. See Hayden v. State, 13 S.W.3d 69, 74B75 (Tex. App.CTexarkana 2000, pet. ref=d) (holding that evidence of other sexual misconduct by appellant was not same-transaction contextual evidence).

The majority concludes that testimony about the extraneous offenses in this case was correctly admitted as same-transaction contextual evidence because the two offenses were alleged to have occurred in close spatial and temporal proximity to the charged offense. However, in Camacho v. State, the Court of Criminal Appeals effectively rejected attempts to define what constitutes same-transaction contextual evidence using temporal or spatial proximity. See 864 S.W.2d 524, 532 (Tex. Crim. App. 1993). In Camacho, the extraneous offense occurred four days after the primary offense, in a different state, and had different victims, but was still held to be admissible as same-transaction contextual evidence. Id. This holding strongly suggests that the sole determinant of what constitutes same-transaction contextual evidence is the standard from Mayes: whether the evidence is essential to understand the nature of the crime alleged. See Camacho, 864 S.W.2d at 532. In this case, hearing testimony about the alleged extraneous offenses involving B.C. is not essential to understand the primary offense involving T.D. See Hayden, 13 S.W.3d at 74B75.

Lack of Notice Under Texas Rule of Evidence 404(b)

In its appellate brief, the State alleges that it gave appellant reasonable notice of its intent to introduce evidence of extraneous offenses as required by Texas Rule of Evidence 404(b) when it informed appellant that it intended to introduce evidence that he had touched B.C.=s breast. However, the State did not indicate it would introduce evidence about appellant pulling down B.C.=s pants and underwear or asking B.C. to touch his Aprivate area.@ Just as a defendant is not required to make inferences about the State=s intent from a subpoena list or other documents in the file, a defendant should not be required to make inferences about whether the State has submitted an exhaustive list of alleged extraneous offenses it intends to introduce into evidence. See Webb v. State, 36 S.W.3d 164, 179 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (en banc) (holding that State=s listing of complainant from another case on its subpoena list did not constitute reasonable notice under Texas Rule of Evidence 404(b)). Consequently, the State=s notice of its intent to introduce evidence of one incident involving the touching of B.C.=s breast did not constitute reasonable notice of an intent to introduce evidence about the other two incidents, and it was an abuse of discretion for the trial court to admit this evidence.

Harm Analysis

The next step is to perform a nonconstitutional harm analysis[1] to determine whether a substantial right was violated. Id. at 181. Because neither party has the burden of showing the error violates a substantial right, we look to the record to determine the effect of the error. Id. To perform a harm analysis as to the erroneous admission of evidence despite failure to give the reasonable notice required under Rule 404(b), the court should consider whether the trial court=s admission of the evidence of extraneous offenses notwithstanding the State=s failure to give the requisite notice constitutes an error that substantially influenced the jury=s decision. Id. at 183. In making this determination, we evaluate the impact on the appellant=s ability to present a viable defense and any other effect the lack of notice might have had on the proceedings, that is, whether it so hampered the appellant=s defense that it affected a substantial right. Id.

In considering the impact of the error on appellant=s ability to defend, we look to whether the defense was able to effectively cross examine the witness through whom the extraneous offense evidence was introduced. Notably, after the trial court ruled that the evidence of the extraneous offenses in question would be allowed, the defense did not claim to be surprised by T.D.=s testimony regarding these alleged offenses, and the defense did not request a continuance or otherwise seek a delay in the trial. Moreover, there is nothing in the record to indicate appellant suffered any actual prejudice as a result of a lack of time to prepare for the cross examination of T.D. regarding these alleged extraneous offenses. Under these circumstances, the trial court=s error in allowing the admission of evidence of these extraneous offenses without the requisite notice from the State did not affect the outcome. See id. Because the trial court=s error was harmless, this court is correct to overrule appellant=s third issue and affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Majority and Concurring Opinions filed October 5, 2004.

Panel consists of Justices Edelman, Frost, and Seymore. (Edelman, J., majority.)

Publish C Tex. R. App. P. 47.2(b).

[1] The only objection appellant voiced to the admission of the extraneous offenses in question was the lack of notice. Therefore, we conduct the harm analysis appropriate to the erroneous admission of extraneous-offense evidence as to which no reasonable notice was given. See Webb, 36 S.W.3d at 183.