STEPHEN NASH OWEN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued May 28, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01612-CR
............................
STEPHEN NASH OWEN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F03-00133-IT
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MEMORANDUM OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice Whittington
        Stephen Nash Owen appeals his conviction for insurance fraud. In a single issue, appellant claims we must reverse his conviction because the trial judge erroneously admitted evidence of extraneous offenses and/or “bad acts” of which the defense had no notice. For the reasons that follow, we disagree and affirm the trial court's judgment.
        Appellant was charged with insurance fraud of $20,000 or more but less than $100,000. See Tex. Penal Code Ann. § 35.02 (Vernon Supp. 2007). After appellant pleaded nolo contendere pursuant to a plea agreement with the State, the trial judge deferred adjudication of guilt and placed appellant on probation for six years. The State subsequently filed a motion to proceed with adjudication of guilt, followed by an amended motion to proceed with adjudication of guilt. Thereafter, appellant pleaded true to the allegations in the State's amended motion. Following a hearing, the trial judge adjudicated appellant guilty and sentenced him to ten years' confinement. This appeal followed.
        In his sole issue, appellant claims the trial judge erred in admitting evidence of extraneous offenses and bad acts. Appellant contends the evidence should not have been admitted because he filed a request for notice pursuant to evidentiary rules 404(b)and article 37.07, section 3(g) of the code of criminal procedure and the State's failure to provide such notice mandates reversal of this case.   See Footnote 1  We disagree.
        Texas Rule of Evidence 404(b) provides
 
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.
 
Tex. R. Evid. 404 (emphasis added). Article 37.07, section 3(g) of the Texas Code of Criminal Procedure similarly provides
 
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 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.
 
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2007) (emphasis added). If a defendant relies on a motion for discovery to request notice pursuant to rule 404(b) as incorporated by article 37.07, section 3(g), it is incumbent upon the defendant to secure a ruling on his motion in order to constitute a “timely request” and trigger the notice requirements of that rule. Espinosa v. State, 853 S.W.2d 36, 39 (Tex. Crim. App. 1993); Valle v. State, 950 S.W.2d 413, 415 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd); President v. State, 926 S.W.2d 805, 807-08 (Tex. App.-Austin 1996, pet. ref'd). Notice filed on the day of trial is untimely. Espinosa, 853 S.W.2d 39.
        In this case, appellant filed his request for notice pursuant to evidentiary rules 404(b) as well as article 37.07, section 3(g) of the code of criminal procedure on November 19, 2007, the same day as the hearing on the State's amended motion to adjudicate. This notice was untimely. Because appellant did not file a timely request, we cannot conclude the trial judge erred in overruling his objection and allowing the complained-of evidence. See Espinosa, 853 S.W.2d at 39 (State not required to give notice when appellant failed to “effectively request notice of the State's intent to use extraneous offenses”). We overrule appellant's single issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071612F.U05
 
Footnote 1 Appellant's request also references Texas Rule of Evidence 609(f). Rule 609(f) provides “Evidence of a conviction is not admissible if after timely written request by the adverse party specifying the witness or witnesses, the proponent fails to give to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.” Tex. R. Evid. 609(f). Because the extraneous offense evidence offered by the State did not involve a prior conviction, rule 609(f) is inapplicable to this case and we do not discuss it.