Alfredo Camacho v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00713-CR
Alfredo CAMACHO,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-6244
Honorable Pat Priest, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: November 7, 2007

 

AFFIRMED

Alfredo Camacho was convicted of three counts of aggravated sexual assault of a child. On appeal, he complains that he was denied reasonable notice of extraneous offense evidence admitted during the punishment phase of trial and that the trial court gave an improper jury instruction during the punishment phase. We affirm the judgment of the trial court.

 

Factual and Procedural Background

Alfredo and Martha Camacho were married and had three children together - two daughters, K.C., age ten, and D.C., age nine, and one son, F.C., age five. On May 22, 2005, Martha returned home from an early morning shopping trip to discover Camacho laying on top of K.C., and "moving on top of her." When Martha pulled the blanket off, she saw that he had an erection. She started screaming at him, and Camacho replied, "don't call the cops. I don't want to go to jail." After a brief struggle, Martha called the police; Camacho, who had fled, was subsequently arrested. Both daughters, K.C. and D.C., thereafter made outcry statements describing several incidents of sexual abuse by their father over a period of time. Camacho was charged with four counts of aggravated sexual assault of a child. (1) At trial, K.C. testified her father had sexually assaulted her by vaginal penetration many times, D.C. testified her father had sexually assaulted her by vaginal, anal, and oral penetration several times, and a day planner in which D.C. had written on November 4, 2004, "dady [sic] hurt me he made me bled [sic] he did bad things to me" was admitted into evidence; in addition, the physical examination of D.C. showed a significant portion of her hymen was missing due to one or more instances of forceful penetration. A jury convicted Camacho of the three counts of aggravated sexual assault involving D.C., and acquitted him of the one count involving K.C. Camacho was sentenced to two 99-year terms and one life term, to be served concurrently.

 

Analysis

Notice of Extraneous Offense Evidence During Punishment Phase

Camacho contends in his first issue that the State failed to provide reasonable notice of its intent to introduce extraneous offense evidence during the punishment phase because it failed to specify the date of the alleged acts. We review the admission of extraneous offense evidence for an abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). We will reverse the trial court's decision only when it is so clearly wrong that it is outside "the zone of reasonable disagreement." Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001).

Camacho made a timely pre-trial request for notice of the State's intent to offer extraneous acts evidence during guilt-innocence and punishment. The State filed a written notice of intent to use extraneous offense evidence on July 7, 2006, and an amended notice on September 27, 2006. Camacho's trial began on October 10, 2006. During the punishment phase, the State called D.C. to offer testimony that Camacho had compelled D.C. and F.C., her five-year-old brother, to engage in sexual conduct with each other. Prior to D.C.'s testimony, Camacho objected to the sufficiency of the State's notice of intent to introduce this evidence. Specifically, Camacho argued that Paragraph 7 of the State's notice was inadequate because it did not allege a specific date, or even an approximate date, on which the alleged acts transpired as required by statute. (2)

See Tex. Code Crim. Proc. Ann. art. 37.07 3(g) (Vernon 2006) (upon timely request by a defendant, the State must give notice of its intent to introduce evidence of extraneous bad acts during the punishment phase, and notice is reasonable only if it includes the date on which the alleged bad act occurred). The trial court overruled the objection, relying on the leniency given to children's testimony about the dates of alleged sexual abuse. D.C. was permitted to testify that Camacho caused D.C. to have sexual contact with her brother F.C. on about three occasions when they lived at the home on Alexander Hamilton. Other evidence admitted during the guilt/innocence phase showed that the Camacho family moved to the house on Alexander Hamilton on July 31, 2004.

The State first responds that Camacho waived his right to complain about the sufficiency of the State's notice by failing to object before trial began; the State argues a pretrial objection was required to avoid "gamesmanship" and "trial by ambush." However, the statute does not require a defendant to raise a pretrial objection to the State's notice of extraneous offense evidence. See Tex. Code Crim. Proc. Ann. art. 37.07 3(g). Other courts of appeals have declined to impose a requirement on the defendant to raise a pretrial objection to inadequate notice. See, e.g., Roethel v. State, 80 S.W.3d 276, 280 (Tex. App.--Austin 2002, no pet.) (holding that the statute does not require defendants to complain about the adequacy of notice before trial, and the defendant preserved his right to complain that State's notice lacked a date by objecting when witness was called to the stand during the punishment phase); see also James v. State, 47 S.W.3d 710, 714 (Tex. App.--Texarkana 2001, no pet.) (noting that the defendant is "not required to complain about the adequacy of the notice, but that the State is required by statute to provide specific information"). Camacho was only required to object before the jury heard the objectionable evidence, and he did so. Polk v. State, 729 S.W.2d 749, 755 (Tex. Crim. App. 1987), rev'd in part on other grounds, 749 S.W.2d 813 (Tex. Crim. App. 1988). Because Camacho objected before the jury heard D.C.'s testimony about the extraneous acts, he preserved his right to appeal this issue. Roethel, 80 S.W.3d at 280.

With respect to the merits of his contention that the State did not provide reasonable notice of the extraneous bad acts between D.C. and F.C., Camacho relies primarily on James, arguing that the State's notice was insufficient because it did not include even a general or approximate date on which the extraneous acts occurred. See James, 47 S.W.3d at 714 (holding that notice lacking "even a general statement about the time the acts occurred" was inadequate under article 37.07 3(g) and that admission of extraneous offense evidence was harmful). In James, the State's notice only alleged the adult witnesses would testify to sexual acts performed by the defendant when they were children under the age of 17 years, thereby creating a 17-year time frame during which the extraneous acts could have occurred. See id. Here, Paragraph 7 of the State's notice alleged that Camacho committed extraneous acts of sexual assault against F.C., his five-year-old son, by causing D.C. to engage in sexual conduct with F.C. "on numerous occasions prior to the date of the indictment." The State asserts that the specification of a general time frame for the alleged acts against F.C. amounted to "substantial compliance" with article 37.07 s notice requirement, especially since the acts involved sexual abuse against a child; alternatively, the State argues any error was harmless because Camacho failed to show he was surprised by D.C.'s testimony about the extraneous acts with F.C.

The sufficiency of the State's notice of extraneous offense evidence depends on the circumstances of each case. Webb v. State, 36 S.W.3d 164, 178 (Tex. App.--Houston [14th Dist.] 2000, pet ref'd). The trial court has discretion to determine what constitutes substantial compliance with the statute's notice requirement; however, it may not use its discretion to excuse outright non-compliance. See Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005) (addressing Tex. R. Evid. 404(b)'s similar notice requirement). The State has been permitted to be less than specific regarding notice of the dates of extraneous offenses committed against children. See, e.g., Splawn v. State, 949 S.W.2d 867, 871 (Tex. App.--Dallas 1997, no pet.) (holding eighteen-month range for extraneous offense was reasonable notice when witness was a child); Hohn v. State, 951 S.W.2d 535, 537 (Tex. App.--Beaumont 1997, no pet.) (noting that "in child sexual abuse cases, it may be impossible to identify one specific date for each separate offense"). Here, however, the State provided virtually no notice of the date(s) of the alleged acts between D.C. and F.C. Since F.C. was five years old at the time of indictment, the State's notice only narrowed the relevant time frame for the extraneous acts to a range of five years prior to the indictment. Even given the relaxed notice standards applicable to child witnesses, we conclude a five-year range is too general to satisfy the date requirements of article 37.07 3(g). See Roethel, 80 S.W.3d at 280-81 (holding an eight-year time span for commission of extraneous offense was too general even under relaxed standards applicable to children's testimony). Therefore, under these facts we conclude that the State's notice of the extraneous acts between D.C. and F.C. was unreasonable, and therefore admission of the evidence was error. Hernandez, 176 S.W.3d at 824.

We must next determine whether the trial court's error in admitting this evidence was harmful. Although the notice provision of article 37.07 3(g) is mandatory, failure to comply does not automatically constitute grounds for reversal. Ford v. State, 73 S.W.3d 923, 925 (Tex. Crim. App. 2002); Roethel, 80 S.W.3d at 281. Erroneous admission of extraneous offense evidence in violation of article 37.07 3(g) is non-constitutional error; therefore, we analyze it to determine whether the error affected a substantial right of the defendant. Tex. R. App. P. 44.2(b); Roethel, 80 S.W.3d at 281; Avila v. State, 18 S.W.3d 736, 741-42 (Tex. App.--San Antonio 2000, no pet.). In determining whether an error affected a substantial right, we evaluate whether the error "had a substantial and injurious effect or influence in determining the jury's verdict." Hernandez, 176 S.W.3d at 824. We will not reverse if, after examining the record as a whole, we have fair assurance the error did not influence the jury or had only a slight effect. McDonald, 179 S.W.3d at 578. We evaluate the effect of the error in admitting extraneous offense evidence without adequate notice in light of the purpose of article 37.07 3(g), which is to prevent surprise to the defendant. Id. (where defendant objected only to lack of notice, not substantive admissibility of extraneous acts, appellate court considers only the harm caused by lack of notice and effect on defendant's ability to mount an adequate defense); Roethel, 80 S.W.3d at 281-82 (noting that the purpose of article 37.07 s notice requirement is to enable the defendant to prepare to meet the extraneous offense evidence, and that harm is assessed in view of whether the statute's purpose was thwarted). (3)

Camacho made no assertion at trial, and makes no contention on appeal, that he was surprised by D.C.'s testimony about the sexual conduct with F.C. Further, Camacho has failed to make any showing of how his defense strategy during the punishment phase might have been enhanced, or different in some respect, if the State had notified him of the exact dates of the extraneous acts between D.C. and F.C. Instead, Camacho makes an argument for harm based on the prejudicial impact of the evidence. He asserts that the extraneous acts between D.C. and F.C. were not merely cumulative of the charged offenses, but were of a different character with a different sexual connotation that could have been considered more abhorrent by some jurors, leading them to impose the maximum sentence. However, focusing on the degree of prejudice created by the erroneous admission of the evidence is a different harm analysis employed for violations of the rules of evidence concerning relevancy, and is not appropriate here where our inquiry is limited to the harm caused by the State's inadequate notice. See Hernandez, 176 S.W.3d at 824-25 (noting that the harm analysis for evidence that is substantively inadmissible under an evidentiary rule governing relevance focuses on unfair prejudice, while the harm analysis for evidence that is inadmissible due to procedural noncompliance focuses on the effect of the deficient notice); see also Roethel, 80 S.W.3d at 281-82.

In addition, Camacho's counsel had the opportunity to cross-examine D.C. about her testimony concerning the acts with F.C., and, as a matter of strategy, chose not to question her. Camacho has presented no argument as to how his preparation or trial strategy would have changed if he had known of the specific dates of the acts between D.C. and F.C. Camacho has failed to show how his defense was "injuriously" affected by the State's failure to provide adequate notice of the dates of the extraneous acts between D.C. and F.C. See Hernandez, 176 S.W.3d at 825 (stating that extraneous offense evidence improperly admitted due to inadequate notice cannot be injurious if the defendant was not surprised by the evidence); Roethel, 80 S.W.3d at 281-82. Accordingly, we conclude that the error in admitting the extraneous offense evidence without adequate notice of the date was harmless.

Additional Instruction During Punishment Phase

Camacho contends in his second issue that the trial judge gave an improper jury instruction during the punishment phase that caused him egregious harm. At the close of the punishment phase, the trial court read the written charge to the jury. Afterward, the judge stated that he had intended to include two additional matters in the written charge. He then proceeded to orally instruct the jury in relevant part that, "when there are multiple counts, whether the sentence[s] imposed for those different counts run simultaneously or one after the other is also a decision made by the judge." Camacho did not object to this instruction, and raises the issue for the first time on appeal. When no objection to a jury instruction is made at trial, any error will be reversible only if it caused the defendant egregious harm. Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006); Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984) (egregious harm exists when the defendant has been deprived of a fair and impartial trial). (4)

We first note that Camacho expressly states in his reply brief that he is not complaining that the instruction was given orally. Rather, Camacho argues the court's instruction highlighted the issue of concurrent or consecutive sentences, and improperly influenced the jury to assess greater sentences because of the risk that the trial court would run the sentences concurrently. Both the State and Camacho agree that the trial court's instruction was an accurate statement of the law. See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon 2006); Tex. Penal Code Ann. 3.03 (Vernon Supp. 2006); see also Alameda v. State, PD-0231-06, 2007 WL 1828371, at *4 (Tex. Crim. App. June 27, 2007). In addition, the court's instruction specifically directed the jury not to consider whether Camacho's sentences would be served consecutively or concurrently, as that was a matter to be determined by the court. Camacho's argument that the court's instruction actually had the effect of directing the jury's attention to the possibility of concurrent sentences is speculation, as there is nothing in the record to indicate the instruction necessarily "primed [the jury] to think that sentences may run concurrently and wanting to ensure a lengthy term, [the jury] will prolong each individual sentence to guarantee its goal, even if it would otherwise be minded to impose a shorter sentence on the merits of each individual count." See Almanza, 686 S.W.2d at 174 ("egregious harm" requires a showing of actual, not theoretical, harm); see also Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999). Finally, there is nothing in the record to indicate the jury did not individually consider and assess punishment as to each of Camacho's convictions. We conclude the instruction was a correct statement of the law, and even if the court erred in giving the instruction, Camacho has not shown egregious harm.

Based on the foregoing reasons, the judgment of the trial court is affirmed.

 

Phylis J. Speedlin, Justice

Do Not Publish

 

1. Count 1 alleged that Camacho intentionally and knowingly caused the penetration of K.C.'s female sexual organ by his male sexual organ on or about May 22, 2005. Counts 2 and 3 alleged that on or about March 1, 2004, Camacho intentionally and knowingly caused the mouth of D.C. to contact his male sexual organ and caused D.C.'s female sexual organ to contact his male sexual organ. Count 4 alleged that Camacho intentionally and knowingly caused the penetration of D.C.'s female sexual organ by his male sexual organ on or about November 4, 2004. All counts alleged that K.C. and D.C. were children younger than 14 years of age.

2. Paragraph 7 of the State's amended notice alleged that:

On numerous occasions prior to the date of the indictment . . . the defendant sexually assaulted [F.C.], a child, by causing [D.C.], also a child, to engag[e] in sexual conduct and sexual contact with [F.C.].

 

3. In Roethel, the court also considered whether the deficient notice resulted from prosecutorial bad faith. Roethel, 80 S.W.3d at 282. The record on appeal contains no indication of prosecutorial bad faith in this case.

4. Citing Fuentes v. State, the State argues that because the court's oral statement was not part of the written jury charge it does not constitute "jury charge error;" therefore, the error was waived by Camacho's failure to object and may not be reviewed under the Almanza "egregious harm" standard for unobjected-to jury charge error. See Fuentes v. State, 991 S.W.2d 267, 276 (Tex. Crim. App. 1999). However, we consider Fuentes to be distinguishable because the court's oral comments in Fuentes were made to a panel of six venire members, not to the jurors who were selected in the case. See id. at 276, n.3.