Timothy Dale Flowers v. State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-01-005-CR

TIMOTHY DALE FLOWERS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2000-93-C

O P I N I O N

A jury convicted Timothy Dale Flowers of burglary with intent to commit sexual assault and sentenced him to two years imprisonment. In two points, Flowers argues that 1) the trial court erred during the punishment phase of trial by admitting evidence of an extraneous offense after it failed to hold a hearing to determine whether the extraneous offense would be proven beyond a reasonable doubt; and 2) the State failed to give proper notice of extraneous offense evidence.

Background Facts

Flowers attacked Krista Knicely on November 25, 1999 by entering the home where she was house-sitting. Flowers, while wearing gloves and a ski mask, knocked Knicely to the ground and strangled her with a belt and his hands. Knicely testified that Flowers touched her in a sexual manner, forced her to touch him in a sexual manner, and unzipped her pants. Two young men saw Flowers through a window and notified police nearby. The police interrupted the attempted assault, and Flowers fled the scene. The two young men tackled and subdued Flowers until he was detained by the police. Flowers did not put on any evidence at the guilt-innocence stage of trial. He only argued that a deadly weapon was not used in the offense. The jury found Flowers guilty and found that he used a deadly weapon.

Extraneous Offense

In his first point, Flowers argues that the trial court erred by admitting evidence of the sexual assault of Lisa Robertson without first holding a hearing to determine whether the extraneous offense would be proven beyond a reasonable doubt. The alleged error occurred during the punishment stage of trial.

Article 37.07, section 3(a) provides that the State may introduce evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant. See Tex. Code Crim. Proc. Ann. art. 37.07 3(a) (Vernon Supp. 2002). Under the statute, the trial court makes a threshold determination of whether the evidence is relevant and thus admissible. See Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996); Jackson v. State, 65 S.W.3d 317, 320 (Tex. App. Waco 2001, no pet.). In conducting this inquiry at the punishment stage of trial, the court should determine whether the jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense. See Mitchell, 931 S.W.2d at 954.

Assuming without deciding that the trial court erred in this regard, we conclude that Flowers was not harmed thereby.

Harm Analysis

Non-constitutional errors which do not affect substantial rights are to be disregarded on appeal. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). The courts have also stated that [a] criminal conviction should not be overturned for non-constitutional error [Rule 44.2(b)] if the appellate court, after examining the record as whole [sic], has fair assurance that the error did not influence the jury, or had but a slight effect. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

In evaluating what impact the error may have had on the punishment decision, we must consider everything in the record, including any testimony or physical evidence admitted for the jury s consideration, the nature of the evidence supporting the punishment decision, the character of the alleged error and how it might be considered in connection with other evidence in the case. See Yarbrough v. State, 57 S.W.3d 611, 619 (Tex. App. Texarkana 2001, pet. ref d) (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). The Court of Criminal Appeals recently reiterated that the presence of overwhelming evidence supporting the finding in question, here the punishment, can and should be a factor in the evaluation of harmless error. See Motilla v. State, No. 598-01, slip op. at 9, 2002 WL 1380912 at *3 (Tex. Crim. App. June 26, 2002) (citing Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2001)).

Punishment Evidence

The State called many witnesses during the punishment phase of trial. The following evidence admitted during punishment is pertinent to our analysis in this case:

"Lisa Parker testified that in 1987 Flowers attempted to sexually assault her. He pushed her against a wall and fondled her breasts before fleeing the scene. Flowers was convicted of assaulting Parker.

"Laura Auckland testified that in 1988 Flowers assaulted her by pulling her pants down in a public place. Flowers was convicted of assaulting Auckland.

"Wanda Reiger testified that in 1989 Flowers grabbed her from behind and smeared feces on her face. Flowers was convicted of assaulting Reiger.

"Susan Struhall testified that in 1989 Flowers grabbed her neck and poured a plastic bag containing feces over her head. Flowers was convicted of assaulting Struhall.

"Officer James Scott testified that in 1998 Flowers was convicted of disorderly conduct for urinating on a residence and looking in the windows.

"Officer Richard Barbaria and Kirk Woodliff testified that in 1998 Flowers entered Woodliff s property at night and attempted to steal a grill while carrying a pistol. Flowers was convicted of carrying an unlawful weapon.

"Testimony showed that in Flowers s journal he admitted to raping a woman.

"Flowers s former probation officer testified that Flowers admitted involvement in a gang rape, numerous acts of exposing himself, and inappropriately touching other persons.

"Lisa Robertson testified that someone matching Flowers s description broke into her apartment and sexually assaulted her in 1999. The State s DNA evidence expert testified that the probability that a white male other than Flowers left the DNA material at the crime scene was 1 in 7,350. The State presented evidence of the pattern of similarities between the sexual assault on Robertson and the attempted assault in the present case. The State also presented evidence that Flowers was seen in the area of Robertson s residence at the time of the assault. Flowers has not been convicted of sexually assaulting Robertson.

Analysis

The State presented extraneous offense evidence describing in detail four separate convictions for assault (two sexual in nature), a conviction for disorderly conduct, and a conviction for unlawfully carrying a weapon. The facts surrounding many of these convictions were extremely violent. Furthermore, the State offered evidence that Flowers admitted to raping at least one other woman, participating in a gang rape, exposing himself on numerous occasions, and inappropriately touching other persons. Finally, the evidence of Flowers s attempted sexual assault of Knicely offered to the jury at guilt-innocence was not controverted.

We must consider everything in the record, including evidence admitted for the jury s consideration, the nature of the evidence supporting the punishment decision, the character of the alleged error and how it might be considered in connection with other evidence in the case. See Yarbrough, 57 S.W.3d at 619 (citing Morales, 32 S.W.3d at 867). The presence of overwhelming evidence supporting the punishment decision can and should be a factor in the evaluation of harmless error. See Motilla, slip op. at 9, 2002 WL 1380912 at *3; Wesbrook, 29 S.W.3d at 119. Therefore, we conclude that any error in admitting evidence of the extraneous offense allegedly committed against Robertson did not influence the jury, or had but a slight effect on Flowers s two-year sentence. Accordingly, point one is overruled.

Notice of Extraneous Offenses

In point two, Flowers argues that the State s notice of extraneous offense evidence was vague, inadequate, and unreasonable. Item q of the notice states that the State plans to use [a]dmissions made to and acts of deviant sexual behavior observed by Michelle Rogers from approximately 1992-1993 in Travis County, Texas. Flowers asserts that item q failed to adequately cover the following: 1) Rogers s testimony that she read Flowers s diary in which he admitted having sexual fantasies about children; 2) Rogers s testimony that she observed that Flowers had angry reactions to women; and 3) Rogers s testimony that she observed Flowers masturbating to pornography.

The State argues that Flowers failed to preserve error, and in the alternative, any error was harmless. Under section 3(g) of article 37.07, [o]n 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 Tex. Code Crim. Proc. Ann. art. 37.07, 3(g) (Vernon Supp. 2002). A timely and specific objection is all that is required to preserve error. See Washington v. State, 943 S.W.2d 501, 504 (Tex. App. Fort Worth 1997, pet. ref d); Dodgen v. State, 924 S.W.2d 216, 219 (Tex. App. Eastland 1996, pet. ref d).

A trial court s rulings as to the admissibility of extraneous offense evidence are reviewed under an abuse of discretion standard. See Mitchell, 931 S.W.2d at 953. Rule of Evidence 404(b) requires reasonable notice [be] given in advance of trial of intent to introduce in the State s case-in-chief [evidence of extraneous offenses]. Tex. R. Evid. 404(b); see also Hayden v. State, 66 S.W.3d 269, 279 (Tex. Crim. App. 2001). In Buchanan v. State, the Court of Criminal Appeals held that an open file policy was not sufficient to comply with the rule. See 911 S.W.2d 11, 14-15 (Tex. Crim. App. 1995). Even if the State s open file contains a document describing the extraneous offense in question, we could not conclude that the mere opening of its file . . . satisfies the requirement of giving notice of intent to introduce such evidence. Id. at 15; see also Hayden, 66 S.W.3d at 279.

Diary Evidence

Flowers first complains about testimony concerning his diary. He offered a timely and specific objection to Rogers s testimony detailing what she read in Flowers s diary regarding his sexual fantasies about children. The trial court overruled his objection. No other item in the notice covered this area of testimony, and the State s open file policy does not satisfy the notice requirement. See Hayden, 66 S.W.3d at 279. The actual language of item q covered only Rogers s observations of deviant sexual behavior and admissions made to her by Flowers. We agree with Flowers that the notice did not cover the extraneous act described in his diary and the trial court abused its discretion by admitting this evidence.

We now look to the harm analysis under Rule 44.2(b). As previously discussed in this opinion, we must consider everything in the record, including evidence admitted for the jury s consideration, the nature of the evidence supporting the punishment decision, the character of the alleged error and how it might be considered in connection with other evidence in the case. See Yarbrough, 57 S.W.3d at 619 (citing Morales, 32 S.W.3d at 867). The presence of overwhelming evidence supporting the punishment decision can and should be a factor in the evaluation of harmless error. See Motilla, slip op. at 9, 2002 WL 1380912 at *3; Wesbrook, 29 S.W.3d at 119. Accordingly, we conclude that any error in admitting evidence of the extraneous offense in the diary did not influence the jury, or had but a slight effect on the punishment.

Evidence of Other Acts

Flowers also complained about Rogers s testimony that 1) she observed that Flowers had angry reactions to women, and 2) that she observed Flowers masturbating. We find these incidents covered by the language of the notice in item q . Thus, the court did not err by admitting Rogers s testimony over Flowers s objection.

Accordingly, point two is overruled.

The judgment of the trial court is affirmed.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed.

Opinion delivered and filed August 7, 2002

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