Jose Maximino Dominguez v. The State of Texas--Appeal from 341st Judicial District Court of Webb County

MEMORANDUM OPINION

No. 04-04-00902-CR

Jose Maximino DOMINGUEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 341st Judicial District Court, Webb County, Texas

Trial Court No. 2004-CRS-000120-D3

Honorable Elma Salinas Ender, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 28, 2005

AFFIRMED

A jury found defendant, Jose Dominguez, guilty on three counts of indecency with a child and one count of aggravated sexual assault. A jury sentenced defendant to twenty years confinement on each count of indecency with a child and ninety-nine years for aggravated sexual assault. Defendant complains of his conviction in four issues on appeal. We affirm.

MOTION TO SEVER OFFENSES

In his first issue, defendant contends the trial court erred in denying his motion to sever offenses. Generally, whenever two or more offenses have been consolidated or joined for trial, the defendant has a right to a severance of the offenses. Tex. Pen. Code Ann. 3.04(a) (Vernon Supp. 2005). However, the right to a severance does not apply to prosecutions for indecency with a child or aggravated sexual assault committed against a child under seventeen unless the trial court determines that the defendant would be unfairly prejudiced by the joinder. Id. 3.03(b)(2), 3.04(c). We review a trial court s ruling on a motion to sever under an abuse of discretion standard. Salazar v. State, 127 S.W.3d 355, 365 (Tex. App. Houston [14th Dist.] 2004, pet. ref d); Silva v. State, 933 S.W.2d 715, 718-19 (Tex. App. San Antonio 1996, no pet.).

At the pre-trial hearing, defendant argued that the reason the State joined the four offenses was to throw everything at him but the kitchen sink to prejudice him...and by allowing the jury to hear that he has been charged in four counts...he must be a bad person...and [the jury is] more [inclined] to find that he is guilty. However, defendant did not establish that he would be unfairly prejudiced by the joinder. Therefore, the trial court did not abuse its discretion in denying defendant s motion to sever offenses.

EXTRANEOUS OFFENSE

In his second and third issues, defendant asserts the trial court erred by denying his request for a mistrial and by denying his request that the jury be instructed to disregard testimony of an extraneous offense about which the State failed to provide notice. We construe defendant s arguments to be that the State failed to give proper notice of its intent to use an extraneous offense and, as a result, defendant was prejudiced.

During the State s case-in-chief, L.H. testified that defendant put [her] hand in his middle part, but not over his pants. Defendant objected on the grounds that the State did not give defendant notice of this extraneous offense, but the trial court admitted the evidence and denied defendant s request that the jury be instructed to disregard the testimony. Prior to trial, defendant requested notice under Texas Rules of Evidence 404(b) and 609 and article 37.07 of Texas Code of Criminal Procedure of extraneous offenses, but defendant did not request notice under article 38.37. In response to defendant s request, the State gave defendant notice pursuant to 404, 609, 37.07 and 38.37. (Emphasis added.) In its notice, the State listed other acts by defendant against L.H., but failed to list the complained-of extraneous offense.

Article 38.37 provides that a defendant who timely requests notice of the State s intent to introduce extraneous offenses during the State s case-in-chief is entitled to notice in the same manner as the state is required to give notice under Rule 404(b). Tex. Code Crim. Proc. Ann. art. 38.37, 3 (Vernon 2005). The purpose behind the notice provision is to adequately make known to the defendant the extraneous offenses the State intends to introduce at trial and to prevent surprise to the defendant. Self v. State, 860 S.W.2d 261, 264 (Tex. App. Fort Worth 1993, pet. ref d). We review a trial court s ruling as to the admissibility of extraneous offense evidence under an abuse of discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). Here, because the State gave notice of its intent to introduce other extraneous offenses under article 38.37, but did not give notice of the complained-of offense, we conclude the trial court erred in admitting the extraneous offense and erred in denying defendant s request that the jury be instructed to disregard the testimony. However, that does not end our review. We must next consider whether the trial court s error was harmful.

The erroneous admission of extraneous evidence does not constitute constitutional error. See Avila v. State, 18 S.W.3d 736, 741-42 (Tex. App. San Antonio 2000, no pet.); see also McDonald v. State, No. PD-1943-04, 2005 WL 3117336, at *5 (Tex. Crim. App. Nov. 23, 2005) (noting that constitutional error is not involved when evidence of uncharged misconduct is admitted without notice). A trial court s failure to give a limiting instruction as to extraneous offense evidence also does not constitute constitutional error. See Rankin v. State, 995 S.W.2d 210, 215 (Tex. App. Houston [14th Dist.] 1999, pet. ref d) (noting it was non-constitutional error when the trial court gave a limiting instruction to the jury when the jury was charged and not at the time the extraneous offense testimony was admitted). Texas 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). Substantial rights are not affected by the erroneous admission of evidence if, after examining the record as a whole, we have a fair assurance that the error did not influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Here, defendant objected only to the lack of notice of the extraneous act, and not to the admissibility of the testimony concerning the extraneous act. Accordingly, we will look only at the harm that may have been caused by the lack of notice and the effect the lack of notice had on defendant s ability to mount an adequate defense. See McDonald, 2005 WL 3117336, at *5.

At trial, defendant had the opportunity to cross-examine L.H. who testified to the extraneous offense. It appears defendant s trial strategy was to discredit L.H. and her ability to remember specific details about her encounters with defendant. Additionally, the State gave defendant notice of its intent to introduce evidence that defendant touched L.H. s female sexual organ with his sexual organ and placed his mouth on L.H. s vagina and breast. Defendant has not shown how his defensive strategy would have been different if he had received notice of the complained-of extraneous act. Hernandez v. State, No. PD-2106-03, 2005 WL 2861117, at *4 (Tex. Crim. App. Nov. 2, 2005) (noting defendant did not show how his defense was injuriously affected by the State s failure to provide reasonable notice). Further, defendant makes no argument that, because of the State s failure to give him notice, he was unable to prepare an adequate defense. Id. Because notice of the extraneous act would not have affected defendant s ability to mount an adequate defense, we conclude that the trial court s error did not influence the jury or had but a slight effect. EXPERT TESTIMONY

In his last issue, defendant complains the trial court erred by allowing Dr. Gregorio Pe a to testify about L.H. s truthfulness. Specifically, Dr. Pe a was asked whether he noticed anything significant that would lead [him] to believe that [L.H.] was coached. He responded, No, ma am. I don t believe she was coached. The State asserts that because defendant did not object at trial, the issue has been waived on appeal. To present a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1. Because defendant did not object to Dr. Pe a s testimony that L.H. was not coached, he has not preserved his complaint for appellate review.

CONCLUSION

We overrule defendant s issues on appeal and affirm the trial court s judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH