Manuel Lujan Cervantes v. The State of Texas--Appeal from 161st District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MANUEL LUJAN CERVANTES, )

) No. 08-03-00292-CR

Appellant, )

) Appeal from the

v. )

) 161st District Court

THE STATE OF TEXAS, )

) of Ector County, Texas

Appellee. )

) (TC# B-30,395)

)

O P I N I O N

Appellant, Manuel Lujan Cervantes, was convicted by a jury trial of indecency with a child. The jury assessed a punishment of 20 years= confinement. In a single issue on appeal, Appellant asserts that the trial court erred by admitting evidence of his prior convictions of driving while intoxicated and indecency with a child during the punishment stage of the trial. Affirm.

DISCUSSION

The testimony at trial indicated that Appellant=s wife witnessed Appellant take their granddaughter from a swing in their backyard to a corner of their backyard. When she went outside, she witnessed Appellant=s hand in the child=s underwear, fondling her from the front to the back.

During the punishment phase of the trial held on May 16, 2003, the State introduced Exhibit 3 and Exhibit 4, which were records of a 1991 conviction for driving while intoxicated and a 1992 conviction of indecency with a child. Appellant=s attorney objected stating the following:

My objection would be once again based on the fact that we requested 404(b) information regarding all extraneous and convictions, and they were just provided May 12th. We would request that the Judge prevent the State from admitting into evidence any extraneous offenses or convictions of his prior criminal history. And that they didn=t comply or give us reasonable notice thereof.

The trial court overruled the objection stating the following:

Here is my ruling. It might be different if we were dealing with an extraneous bad act, some unadjudicated matter. Some matter that the Defense would have to get ready to defend on a factual basis.

What we are dealing with here is pure criminal records. Matters that have sort of always been known to be introduced. And not just criminal records, we are dealing here with final convictions. And of which the State, prior to trial did give notice to the Defendant.

So the amount of time to be reasonable on a final conviction, and obviously someone had noted he had been to the penitentiary, was aware of and that all parties know is an admissible item, is a little bit different than something that might be just an accusation that they have to get ready to defend. For that reason, I find that the notice here prior to trial -- a couple of days prior to trial would be reasonable notice. I overrule that objection.

On appeal, Appellant raises a single issue. Appellant argues that the trial court erred in overruling his objection and admitting the State=s Exhibit 3 and 4 at the punishment phase of the trial, because the State had failed to provide him with reasonable notice of its intent to introduce such evidence. The State argues that Appellant failed to preserve his issue for appeal because his objection as trial differs from his issue on appeal. We disagree with the State=s contention, and find that Appellant did properly preserve the issue of whether the State provided him with reasonable notice of its intent to introduce the prior convictions.

Texas Rule of Evidence 404(b) states:

(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State=s case-in-chief such evidence other than that arising in the same transaction.

See Tex.R.Evid. 404(b). Rule 404(b) does not apply to the punishment phase of the trial, which is the portion of the trial where the State offered the convictions in question. See Tex.R.Evid. 404(b). The adequacy of the State=s notice is controlled by Article 37.07, section 3(g), which requires that notice be given in the same manner mandated by Rule 404(b).[1] See Tex.Code Crim.Proc.Ann. art. 37.07, ' 3(g)(Vernon Supp. 2004-05). There is no statutory meaning of Areasonable@ as provided in Rule 404(b), in the Code of Criminal Procedure, or otherwise in the Rules of Evidence. Patton v. State, 25 S.W.3d 387, 392 (Tex.App.--Austin 2000, pet. ref=d ). Whether notice was reasonable is determined on the facts and circumstances of each individual case. See Id.

Appellant relies upon Hernandez v. State, 914 S.W.2d 226, 234-35 (Tex.App.--Waco 1996, no pet.) and Neuman v. State, 951 S.W.2d 538, 540 (Tex.App.--Austin 1997, no pet.) to support his contention. We find these cases to be distinguishable. In Hernandez, the State=s notice of an unadjudicated matter was found to be unreasonable when it was given on Friday afternoon and the trial commenced on Monday morning. See Hernandez, 914 S.W.2d at 234. Such error, however, was held to be harmless. See id. at 238. In Neuman, notice of the extraneous unadjudicated matter was given the morning of trial was found to be unreasonable. See Neuman, 951 S.W.2d at 540. This error was found not to be harmless. See id. at 542.

In our case, Appellant received notice of the State=s intent to admit the two prior convictions on Monday, May 12, three days before the trial commenced. The evidence in this case, unlike in Hernandez and Neuman, involved final convictions. In reviewing the trial court=s decision to admit this evidence under an abuse of discretion standard, we find that allowing the prior convictions was not beyond the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.3d 372, 379-80, 391 (Tex.Crim.App. 1990); see also Ramirez v. State, 967 S.W.2d 919, 923 (Tex.App.--Beaumont 1998, no pet.), holding that the trial court did not abuse its discretion in finding that three days was an adequate period of time in which to prepare to challenge the penitentiary packets of the felony convictions. Appellant =s single issue on appeal is overruled.

The judgment of the trial court is affirmed.

July 14, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Article 37.07, ' 3(g) states:

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 Criminal 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. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.