Juan V. Blanco v. The State of Texas--Appeal from 331st District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00248-CR
Juan V. Blanco, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 0941811, HONORABLE BOB PERKINS, JUDGE PRESIDING

PER CURIAM

 

A jury found appellant guilty of attempted murder and assessed punishment at imprisonment for twenty years. Tex. Penal Code Ann. 15.01 (West 1994); (1) Penal Code, 63d Leg., R.S., ch. 399, sec. 1, 19.02, 1973 Tex. Gen. Laws 883, 913, amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, 1, 1973 Tex. Gen. Laws 1122, 1123 (Tex. Penal Code Ann. 19.02, since amended).

In a single point of error, appellant contends that evidence of an unadjudicated offense was erroneously admitted at the punishment stage. The evidence in question described an incident in which appellant stole a sports car, drove through a residential neighborhood at high speed, then lost control of the vehicle and crashed, leaving the stolen car a total loss.

Evidence of an unadjudicated extraneous offense committed by the defendant is admissible at the punishment stage. Tex. Code Crim. Proc. Ann. art. 37.07, 3(a) (West Supp. 1995). If requested to do so, the State must give the defendant reasonable notice of the unadjudicated offense evidence it intends to offer. Id., 3(g). Appellant contends the State failed to give him reasonable notice that it intended to prove appellant's unauthorized use of a motor vehicle and that the district court erred by admitting the evidence over appellant's objection.

On April 6, 1994, appellant filed a request for "advance written notice of [the State's] intent to use evidence of other crimes, wrongs, or acts (extraneous offenses) in the State's case in chief pursuant to Rule 404(b)." (2) On Friday, April 15, the prosecutor gave defense counsel a copy of the police offense report concerning the unauthorized use incident and told counsel that he intended to prove this unadjudicated offense "if I could get my witnesses together." Appellant's trial began on Monday, April 18, and the punishment phase began on Thursday, April 21.

Appellant does not complain of the adequacy of the State's notice, but only of its timing. See Buchanan v. State, 881 S.W.2d 376, 379-80 (Tex. App.--Houston [1st Dist.] 1994, no pet.) (giving defense access to police offense report was adequate notice of unadjudicated offense). Appellant argues that giving him notice only one working day before trial began denied him a fair opportunity to investigate the extraneous offense. The record reflects, however, that an investigator was appointed to assist defense counsel in this cause. There is no evidence that the investigator was unable, during the six days between the prosecutor's notice and the beginning of the punishment stage, to investigate adequately the allegations contained in the offense report. There is also no evidence that the information contained in the offense report, which is six pages long and quite detailed, was inaccurate. On this record, appellant has failed to demonstrate that the timing of the State's notice was unreasonable. Point of error one is overruled.

The judgment of conviction is affirmed.

 

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: March 29, 1995

Do Not Publish

1. The 1994 amendment to section 15.01(d) is irrelevant to this cause.

2. The State reads this request as asking only for notice of extraneous offense evidence to be offered at the guilt-innocence stage and therefore argues that it was under no obligation to give appellant notice of the extraneous offense evidence it intended to offer at the punishment stage. We express no opinion on this issue.