Victor A. Icenogle v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00898-CR

No. 04-05-00899-CR

Victor A. ICENOGLE,

Appellant
v.

The STATE of Texas,

Appellee

From the 290th Judicial District Court, Bexar County, Texas

Trial Court Nos. 2004-CR-5795, 2004-CR-5796

Honorable Pat Priest, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: January 19, 2007

AFFIRMED

After a jury found defendant, Victor A. Icenogle, guilty of aggravated sexual assault of a child, he was sentenced to confinement for life. We affirm.

BACKGROUND

Defendant originally came into contact with B.D. and M.M. when he was the pastor of their church. At their mother's request, the sisters moved into defendant's home in February of 2003 when they were both younger than fourteen. The children's grandmother eventually removed the girls from defendant's house to her home in Illinois after she became concerned for their welfare. After the grandmother observed M.M. acting strangely, she took the girls to a crisis center and subsequently law enforcement officials became involved. After defendant learned he was being sought by police, he painted his van, put his belongings in storage, and fled to Louisiana where he was eventually apprehended.

At trial, both B.D. and M.M. testified that defendant sexually assaulted them while they lived at his home. Additionally, one of defendant's former parishioners, Vertanya Johnson, testified that defendant painted his van and told her he planned to run away from the police because a woman had called Child Protective Services and was causing trouble for him. Several police officers also testified that before the defendant was arrested in Louisiana, he had jumped a fence at a storage unit when the police came looking for him and he became a fugitive from arrest.

MOTION FOR MISTRIAL

In his first issue, defendant asserts the trial court abused its discretion by denying his motion for mistrial after the State allowed the jury to view prejudicial extraneous offense statements contained in enhancement paragraphs of the indictments. According to defendant, prior to opening statements, the prosecutor positioned the indictments in such a way that the jury was able to read the word "repeater" stamped in red ink. Defendant argues that allowing the jury to view the word "repeater" on each indictment had the same prejudicial affect as reading enhancement paragraphs to the jury at the onset of trial. Defendant also alleges this action is akin to a violation of article 36.01 of the Texas Code of Criminal Procedure. SeeTex. Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon 2006) (prohibiting, with certain exceptions, reading of indictments containing prior convictions until punishment phase).

We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A 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. Id. The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Id. A mistrial is required only when the error is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of jurors. Id.

Here, nothing in the record indicates any juror saw the word "repeater" on the indictments or, if any saw the word, were influenced by the word. Additionally, while defendant argues the State violated article 36.01(a)(1), he does not allege an enhancement paragraph was read improperly or in an untimely manner to the jury as would be required to prove an article 36.01 violation. Because the record does not support a finding that any juror actually saw or was influenced by the word "repeater," the trial court did not abuse its discretion in denying defendant's motion for mistrial on the grounds that the State wrongly allowed the jury to view prejudicial statements in the indictments.

In his fourth issue, defendant argues the trial court abused its discretion in denying his motion for mistrial based upon B.D.'s testimony regarding extraneous acts allegedly committed by defendant. During trial, B.D. indicated that defendant had sexual contact with another child, in addition to her and her sister M.M. The exchange was as follows:

Q.: Okay. And what she will - I guess, what you-all have - what you-all say together, was that it happened to both of you?

B.D.: Actually, it happened to Desiree, [M.M.], and I.

Defense counsel then moved for a mistrial. The trial court denied the motion, but instructed the jury to disregard B.D.'s statement. Defendant now contends B.D.'s testimony was highly prejudicial and as such the trial court erred in denying his motion for mistrial.

Generally, any harm caused by an improper answer, even regarding extraneous offenses, is cured by an instruction to disregard. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). A mistrial is required only when the improper evidence 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 in the minds of the jury." Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999) (citations omitted). The jury is presumed to follow the trial court's instruction to disregard improperly admitted evidence. Id.

Here, "Desiree" was never identified to the jury, no further details were offered, and her name was not mentioned again. Upon reviewing the record, we find no indication in either the question or answer that the witness or the State sought to inflame the jury with information regarding other allegations against defendant. Therefore, we conclude the trial court's instruction to disregard cured any possible prejudicial effect of the witness's testimony.

TEX. R. EVID. 404(b) NOTICES

Upon timely request by a criminal defendant, the State is required to provide "reasonable notice" of its "intent to introduce in the State's case-in-chief such evidence other than that arising from the same transaction." Tex. R. Evid. 404(b). Here, the State filed a series of Rule 404(b) notices, each entitled "amended" rather than "supplemental."

In his second issue, defendant asserts the trial court abused its discretion in allowing extraneous offense evidence from the State's first amended notice because it was superseded by the State's fourth amended notice. On appeal, defendant asserts he relied on the general rule that amended pleadings supercede previously filed pleadings. However, defendant does not assert he was unable to prepare his defense based on lack of notice. Instead, he contends, without elaboration, that the admission of the evidence "prejudiced" his defense.

Before trial, defendant filed written objections to the admissibility of the extraneous offenses arguing that the original, first, second, and third amended notices filed by the State were superseded by the State's fourth amended notice. Additionally, at a hearing on pre-trial motions, defendant again objected to the original, first, second, and third amended notices as having been superseded by the fourth amended notice. Following the hearing, the trial court ruled that the extraneous acts in all the notices would be allowed because, although the State entitled its additional notices "amended," the court reasoned the State "did not intend to abandon" its prior notices and that defendant "[was] not unfairly prejudiced by [the court's] ruling that [the prosecutor] may go into the matters that are set out in his prior notices." The trial court thus found that the fourth amended notice did not replace the original notice, but only supplemented it. We agree with defendant that the State should have entitled its additional notices as "supplemental" or "additional" rather than "amended." On this record, however, we conclude the trial court did not abuse its discretion when it determined: (1) the State intended its last-filed notice to supplement, rather than amend, its prior notices; and (2) the defendant was not unfairly prejudiced.

EXTRANEOUS OFFENSES

In his third and fifth issues, defendant attacks the reasonableness of the State's notice of extraneous offenses. Specifically, defendant argues the trial court abused its discretion in allowing extraneous offense evidence from the State's fourth amended Rule 404(b) notice because the notice was per se unreasonable.

Rule 404(b) provides that the notice of the State's intent need only be reasonable. Tex. R. Evid. 404(b). What constitutes reasonable notice under Rule 404(b) depends on the facts and circumstances of the case. Sebalt v. State, 28 S.W.3d 819, 822 (Tex. App.-Corpus Christi 2000, no pet.).

Here, defendant asserts the State's fourth amended notice, provided on October 20, 2005, six days before trial commenced on October 26, 2005, provided him an insufficient and unreasonable opportunity to address the extraneous offenses included in the fourth amended notice. In its fourth amended notice, the State stated its intention to offer evidence in the guilt/innocence phase and punishment phase that defendant had been convicted, in Florida, on two counts of Lewd Act On A Child, that his probation had been revoked, and he had been sentenced to confinement in Florida. (1) Notice given six days before a trial is not per se unreasonable as the defendant argues. Sebalt, 28 S.W.3d at 821-22 (notice given on Friday before Monday trial not per se unreasonable). Also, at the hearing on defendant's objection, the trial court ruled the State would not be allowed to present this evidence during its case-in-chief, however, the court ruled the State would be allowed to present the evidence during the punishment phase. The punishment phase of trial, at which the State offered the evidence, commenced on November 4, 2005, almost two weeks after defendant received the fourth amended notice. At no time did defendant request a continuance. On this record, we conclude the trial court did not abuse its discretion in allowing the State to introduce the extraneous evidence during the punishment phase.

In his fifth issue, defendant asserts the trial court abused its discretion in allowing Jordan Nagle to testify during the punishment phase of trial because the State did not notify him of its intent to call Nagle as a witness. Defendant contends the State failed to comply with an order to turn over a list of its witnesses pursuant to a discovery order for the disclosure of names of the State's witnesses. He argues that because the State did not specifically notify him of its intent to use Nagel's testimony, he did not have the adequate notice necessary to properly prepare for trial. (2) During the punishment phase, when Nagle was called to testify, defendant again raised his objection that her testimony should be excluded because the State filed an "amended" Rule 404(b) notice, rather than a "supplemental" notice. Defendant did not inform the court that the State failed to provide Nagle's name on a witness list. Because defendant's trial objection does not comport with the complaint raised on appeal, he has preserved nothing for review. Tex. R. App. Proc. 33.1(a); Knox v. State, 934 S.W.2d 678, 687 (Tex. Crim. App. 1996).

CONCLUSION

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

Sandee Bryan Marion, Justice

Do not publish

1. The fourth amended notice restated the State's intent to offer evidence of the same extraneous offenses listed in its original notice involving complainants Rebecca Nagle and Jordan Nagle, but added the additional notice of the State's intent to introduce evidence of the defendant's conviction in Florida and that his subsequent probation was later revoked.

2. As noted in footnote 1, the fourth amended notice restated the State's intent to offer evidence of the same extraneous offenses listed in its original notice involving Jordan Nagle.