COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00390-CR

AARON CLARK WHAM APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY

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MEMORANDUM OPINION1

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I. Introduction

Appellant Aaron Clark Wham appeals his 365-day jail sentence assessed 

by the trial court after a jury convicted him of committing assault-family violence. 

In two issues, Appellant asserts that the trial court reversibly erred by allowing 

the State to admit extraneous bad acts evidence against him in the punishment 

phase when the State had not given proper notice of the acts, as required by 

 

1See Tex. R. App. P. 47.4.
2

article 37.07, section 3(g) of the code of criminal procedure. See Tex. Code 

Crim. Proc. Ann. art. 37.07, ' 3(g) (West Supp. 2010). We affirm. 

II. Factual and Procedural Background

On February 4, 2009, Appellant filed a pretrial request for notice of the 

State‘s intent to introduce against him ―evidence of an extraneous crime or bad 

act at the punishment phase of trial,‖ pursuant to article 37.07, section 3(g). On 

June 16, 2009, the State notified Appellant in writing that it intended to offer 

evidence of ―Previous Acts of Violence against [the complainant].‖

On November 9, 2009, Appellant pleaded not guilty to Class A 

misdemeanor assault against his wife, and a jury trial ensued. Viewed in the light 

most favorable to the verdict,2the evidence reveals that in the early morning 

hours of January 1, 2009, Appellant and his wife, the complainant, resumed an 

argument they had started the night before. During the argument, the 

complainant stood diagonally from Appellant, who was sitting on the couch and 

―very intoxicated.‖ Suddenly, Appellant stood up, reared his head back, and 

struck the complainant over her left eye with the top of his head. The 

complainant‘s laceration began bleeding profusely, and she drove to the hospital 

and received seven stitches. The jury found Appellant guilty of assault as 

alleged in the information.

 

2See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); 

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Because 

Appellant does not challenge the sufficiency of the evidence, we only briefly set 

forth the evidence presented at trial.
3

Appellant elected to have the trial court assess punishment. The 

complainant and her mother testified for the State, and their testimony is

discussed below.3 Appellant‘s counsel cross-examined both witnesses but did 

not present a separate case-in-chief. In closing argument, Appellant‘s counsel 

emphasized that Appellant had a problem with alcohol and asked the trial court 

to assess some form of alcohol counseling as a condition of community 

supervision, or in the alternative, assess ―substantially less than 365 days.‖ The 

State asked the trial court to ―consider the victim‘s safety in this and assess the 

maximum punishment.‖ The trial court assessed punishment at 365 days in the 

county jail and sentenced Appellant accordingly.

III. Discussion

In his first issue, Appellant asserts that the trial court erred by allowing the 

State to introduce extraneous bad acts evidence against him in the punishment 

phase when it had not given proper notice of any extraneous bad acts, as 

required by article 37.07, section 3(g) of the code of criminal procedure. In his 

second issue, Appellant asserts that the trial court‘s error was harmful and 

requires that he receive a new punishment trial.

The State does not address the sufficiency of its notice, arguing instead (1) 

that Appellant waived any error ―on most, if not all, of the alleged errors‖ and (2) 

 

3

The State also introduced Appellant‘s prior judgments, reflecting three 

convictions for burglary of a motor vehicle, one conviction for criminal mischief, 

one conviction for burglary of a building, two convictions for delivery of a 

controlled substance, and one conviction for driver‘s duty on striking highway 

fixtures.
4

that, ―[w]ithout conceding error as to the sufficiency of the State‘s notice,‖ any 

error was harmless. 

A. Extraneous Offense Evidence in the Punishment Phase

Article 37.07, section 3(a) of the code of criminal procedure provides in 

pertinent part,

[E]vidence may be offered by the state and the defendant as to any 

matter the court deems relevant to sentencing, including . . . 

evidence of an extraneous crime or bad act that is shown beyond a 

reasonable doubt by evidence to have been committed by the 

defendant or for which he could be held criminally responsible, 

regardless of whether he has previously been charged with or 

finally convicted of the crime or act.

Id. art. 37.07, ' 3(a). Article 37.07, section 3(g) 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.

4

Id. art. 37.07, ' 3(g) (emphasis added).

The purpose of the notice provision is to avoid unfair surprise and to 

enable a defendant to prepare to answer the extraneous offense evidence. See 

Burling v. State, 83 S.W.3d 199, 202–03 (Tex. App.—Fort Worth 2002, pet. 

ref‘d); see also Wallace v. State, 135 S.W.3d 114, 120 (Tex. App.—Tyler 2004, 

 

4Rule 404(b) provides in relevant part that other-crimes evidence may be

admissible for limited, non-character conformity purposes provided that the 

prosecution gives the accused reasonable notice in advance of trial of its intent to 

use this evidence during its case-in-chief. Tex. R. Evid. 404(b).
5

no pet.). Courts have carved out exceptions to the rule so that the notice need 

not specify exact counties. See Nance v. State, 946 S.W.2d 490, 493 (Tex. 

App.—Fort Worth 1997, pet. ref‘d) (holding that section 3(g) was satisfied by 

State‘s notice listing city and state); see also Wallace, 135 S.W.3d at 120.

Courts have also given the State leeway in specifying exact dates. Wallace, 135 

S.W.3d at 120; Burling, 83 S.W.3d at 203 (holding that variation of six weeks 

between date alleged in notice and that presented at trial is reasonable). We 

review a trial court‘s decision to admit extraneous offense evidence for abuse of 

discretion. See Sanders v. State, 191 S.W.3d 272, 276 (Tex. App.—Waco 2006, 

pet. ref‘d), cert. denied, 549 U.S. 1167 (2007); Owens v. State, 119 S.W.3d 439, 

444 (Tex. App.—Tyler 2003, no pet.); see also McDonald v. State, 179 S.W.3d 

571, 576 (Tex. Crim. App. 2005) (applying abuse of discretion standard to a rule 

404(b) notice challenge). In the absence of reasonable notice, however, a trial 

court abuses its discretion by admitting extraneous offense evidence. Roethel v. 

State, 80 S.W.3d 277, 283 (Tex. App.—Austin 2002, no pet.).

B. Preservation of Error

To preserve a point for appellate review, a party must have presented to 

the trial court a timely objection stating the specific grounds for the ruling sought, 

unless the specific grounds were apparent from the context. Tex. R. App. P. 

33.1(a)(1); see Berry v. State, 233 S.W.3d 847, 856–57 (Tex. Crim. App. 2007). 

Further, the trial court must have ruled on the objection, either expressly or 

implicitly, or the complaining party must have objected to the trial court‘s refusal 

to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. 
6

Crim. App. 2004). Here, Appellant focuses on five instances in which he alleges 

that the trial court improperly admitted extraneous bad acts evidence. We will 

address each instance in turn. 

1. Testimony of the Complainant’s Mother

In this instance, the State asked the complainant‘s mother, Luann 

McCormick, ―Has this been the first incident of violence against your 

daughter?‖5 Appellant immediately objected that he had not gotten proper 

404(b) notice, and the State responded, ―Our 404(b) notice included prior acts 

of violence against [the complainant].‖ Appellant‘s counsel replied, 

And that‘s true, Your Honor, but without specificity as to dates, 

times, possible locations, it‘s impossible for the Defense to prepare 

for such an accusation. I believe the 404(b) notice the State 

provided just simply said prior acts of violence against [the 

complainant]. It did not list a county, it did not list an offense date, or 

―on or about‖ language, or anything to put the Defense on notice.6

The trial court overruled the objection, and McCormick testified that Appellant 

took the spark plugs out of the complainant‘s car so she could not drive and 

smashed the car windows. She also testified that Appellant ―would get in [the 

 

5Appellant and the complainant had been married approximately five and a 

half years at the time of the November 2009 trial.

6Although Appellant referenced rule 404(b) rather than article 37.07, 

section 3(g), he discussed the substance of article 37.07, and his written notice 

request cited article 37.07, section 3(g). The record indicates that the trial court 

understood Appellant was referring to article 37.07 notice. Thus, Appellant‘s 

objection was sufficiently specific. See Apolinar v. State, 106 S.W.3d 407, 414 

(Tex. App.—Houston [1st Dist.] 2003) (reaching similar conclusion), aff’d on other 

grounds, 155 S.W.3d 184 (Tex. Crim. App. 2005).
7

complainant‘s] face . . . it was a –– a very confrontational, face-to-face-type 

thing.‖ During McCormick‘s testimony, the trial court stated,

[B]ecause there was an objection as to any other abuse as to [the 

complainant], and I didn‘t hear anything of that nature. So after 

hearing that, I‘m — I‘m going to sustain the Defense‘s objection to 

that and not consider the answer to that one question, because it 

was — anyway, I didn‘t hear anything. I just want to make sure the 

record is clear about that, and the Court has not considered any 

other acts of violence against [the complainant] because I didn‘t hear 

anything. 

Because the trial court sustained Appellant‘s objection, Appellant did not obtain 

an adverse ruling upon which to complain on appeal. See Geuder v. State, 115 

S.W.3d 11, 13 (Tex. Crim. App. 2003) (holding that an objection must be timely, 

specific, pursued to an adverse ruling, and with two exceptions, 

contemporaneous). Because the trial court provided Appellant with the 

requested relief, nothing is preserved for review.

2. The Complainant’s Testimony

a. The Cruise Ship

During this exchange, the State asked the complainant, ―About how soon 

after y‘all started dating did things turn physical, in terms of any physical acts of 

violence against you?‖ Without objection, the complaint testified that she and 

Appellant had taken a cruise in 2004 or 2005 and that one night she found 

Appellant ―passed out on the deck.‖ When the complainant tried to wake 

Appellant, he jumped up and threw her against the wall, and she almost fell over 

the boat‘s railing. The complainant testified, ―He got me cornered on the wall. 
8

He was choking me. Some random guy had to pull him off of me, and eventually, 

the police officers on the cruise ship took him away.‖ 

Appellant asserts that because he had objected to similar testimony earlier 

and because trial was to the court, he did not have to repeat his objection in light 

of rule of evidence 103(a)(1). See Tex. R. Evid. 103(a)(1) (―When the court 

hears objections to offered evidence out of the presence of the jury and rules that 

such evidence be admitted, such objections shall be deemed to apply to such 

evidence when it is admitted before the jury without the necessity of repeating 

those objections.‖). Appellant cites no authority in support of his argument that 

rule 103(a)(1) applies to bench trials. Moreover, the trial court sustained his 

previous objection, and the subject matter of the complainant‘s testimony differed 

from her earlier testimony. Thus, Appellant waived any complaint on appeal by 

not objecting. See Mendez, 138 S.W.3d at 342.

b. The Hotel

Here, the State asked the complainant when ―the next physical act 

occurred,‖ and she responded that one summer she and Appellant had rented 

adjoining hotel rooms with her sister and her sister‘s husband. When the 

complainant testified, ―I heard [Appellant] talking about wanting to get some coke. 

And —,‖ the following dialogue occurred: 

[Defense Counsel]: I‘m going to object, Your Honor, first, to 

404(b), any kind of mention of illicit drug or drug use. There‘s 

nothing in the 404(b) notice about that. 

THE COURT: Okay.
9

[Defense Counsel]: Secondly, I would renew my objection I 

made to the prior witness, about prior acts of violence of [the 

complainant] not being specifically defined or laid out in the 404(b) 

notice.

THE COURT: And I‘ll sustain the objection as to the coke, the 

drugs.

[State]: But the prior acts of violence are still okay to go into?

THE COURT: Yes.

. . . .

Q. [State]: [D]id y‘all get into an argument?

A. [Complainant]: We got into an argument. We went back —

we went back over to our room. We were arguing.

[Defense Counsel]: May I have a running objection, Your 

Honor, to any further acts so that I don‘t — if they go into any further 

acts, I don‘t want to have to keep objecting.

THE COURT: On this occasion, yes.

[Defense Counsel]: Just for this witness, Judge?

THE COURT: Yes, for this occasion.

[Defense Counsel]: But we can consider the prior ruling 

overruled? As to prior acts of violence, my objection to that under 

404(b) was overruled?

THE COURT: Yes. Yes. Yes. 

[Defense Counsel]: Thank you, Your Honor.

THE COURT: As to this one occurrence. 

The complainant then testified that Appellant was not ―so much physical with 

[her]. He tried to keep [her] from leaving the room.‖ The complainant further 

testified that she eventually left the room but that when she returned, ―[t]he room 

was a mess. There was blood on the sheets. The phone was broke. It was just 
10

like a bomb went off in there.‖ At this point, the trial court interposed, ―[I] want to 

make the record clear from what I‘ve just heard, I didn‘t hear any prior acts of 

violence against her, so the Court‘s not considering that. . . . The last incident 

that I just heard.‖ Because the trial court, acting as the factfinder, specifically 

stated that he did not hear any evidence regarding prior acts of violence in this 

instance, Appellant has no complaint on appeal that the trial court abused its 

discretion by considering such evidence. 

c. The Neighbor’s Home 

In this exchange, the State asked the complainant whether Appellant had 

physically confronted her after the hotel incident but before the most recent 

offense. The complainant responded, ―Yes . . . There‘s been two,‖ and when the 

State asked the complainant to describe the first incident, defense counsel 

stated, ―Same objection to 404(b), about lack of specificity in the notice the State 

provided.‖ The trial court overruled the objection ―temporarily,‖ explaining that it 

would hear the evidence and then rule. The complainant proceeded to testify 

that she and Appellant went to a party at a friend‘s house in the summer of 2008, 

that Appellant got ―very drunk,‖ and that she had to drive him home. In the car, 

Appellant yelled at her and told her to let him out of the car. When Appellant 

opened the passenger side door, the complainant stopped, and Appellant got out 

of the car. Back at home, the complainant asked a neighbor to find Appellant 

and pick him up. When the neighbor arrived with Appellant, Appellant pushed 

the complainant and told her he was going to kill her. The neighbor had to pull 

Appellant off of the complainant. 
11

The State asserts that Appellant failed to preserve error because he did 

not reurge his objection and because the trial court did not make a final ruling. 

See Mendez, 138 S.W.3d at 341. Appellant asserts that the trial court‘s 

―temporary‖ ruling operated as a final decision because the testimony ―could not 

conceivably bear on whether admission of the testimony would violate the 

 ̳procedural‘ notice requirements of [a]rticle 37.07, section 3(g).‖ Appellant did 

not present this argument to the trial court. To the extent Appellant argues that 

the trial court implicitly overruled his objection, we disagree. Cf. Ramirez v. 

State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991) (holding that trial court‘s 

unqualified directive to ―Let [the witness] answer the question‖ constitutes an 

implicit adverse ruling which preserves error). Here, the trial court specifically 

made a ―temporary‖ ruling. Because Appellant did not obtain a definitive adverse 

ruling, he waived his complaint that the trial court abused its discretion by 

admitting this testimony. See id. (holding that an adverse ruling must be 

―conclusory,‖ that is, ―it must be clear from the record the trial judge in fact 

overruled the defendant‘s objection or otherwise error is waived‖). 

d. The Complainant’s Apartment

In this instance, the State asked the complainant about an August 23, 

2009 incident, which occurred after the assault for which Appellant was on trial. 

Following the complainant‘s testimony that ―one night she and her children were 

in their apartment,‖ the following dialogue occurred:

[Defense Counsel]: I‘m going to object again, Your Honor, 

under 404(b), lack of specificity about this incident. 
12

THE COURT: Okay. It‘s a filed case, though. 

[Defense Counsel]: Yes, Your Honor, but the State didn‘t give 

me any notice about their intent to use it in any kind of punishment 

here before the Court today, or the case in chief. 

THE COURT: Okay. But you knew there were prior offenses, 

and you knew that there was a case pending against your client. 

[Defense Counsel]: I didn‘t for – I will – I did know that he was 

arrested, bonded out, and the case was in Intake. I didn‘t know it 

had been filed until today, Your Honor. But I did know there was a 

case in the District Attorney‘s file. The District Attorney had the case 

in their Intake Department. I didn‘t know it was filed until – it was 

either Your Honor or the DA told me that today, that it was – that it‘s 

been filed. 

THE COURT: But you were aware that he had been arrested 

and charged?

 

[Defense Counsel]: I was well aware of the charges, yes, your 

Honor. I was not aware of the State‘s intent to use that in 

Punishment. 

THE COURT: So your client was full[y] aware of the charges 

against him?

[Defense Counsel]: I assume he was, yes. I mean, he was 

arrested for them, so I would assume he was. 

THE COURT: Okay. I‘ll overrule the objection.

The complainant then testified that around 10:30 p.m. on August 23, 2009, 

she had been sitting outside on her second-floor balcony when she saw 

Appellant outside her apartment. When the complainant went inside, she found 

Appellant on the first floor. He appeared to be intoxicated, and he was mumbling 
13

that he wanted to see their two children.7 When the complainant told Appellant to 

leave, he raised his hand and moved toward her. ―And the next thing I kn[e]w, I 

was on the ground, my tooth had come out, and I had a scratch on my chin.‖ 

The complainant testified that Appellant was gone by the time she got up, that 

she called the police, and that she filed charges against Appellant. 

The State asserts generally that Appellant waived any error because he 

failed to renew his objection or request a running objection at any time during the 

complainant‘s testimony about this incident. See Geuder, 115 S.W.3d at 13 

(holding that an objection must be made each time inadmissible evidence is 

offered unless the complaining party obtains a running objection or requests a 

hearing outside the jury‘s presence); Ethington v. State, 819 S.W.2d 854, 859–60 

(Tex. Crim. App. 1991) (holding that appellant did not preserve error because he 

did not object to the witness‘s continued detailed testimony regarding extraneous 

robbery). Appellant contends that he ―lodge[d] a valid objection to all the 

testimony he deem[ed] objectionable on a given subject at one time out of the 

jury‘s presence,‖ an option sanctioned in Ethington, 819 S.W.2d at 859. 

The record demonstrates that the trial court and both parties understood 

Appellant to be objecting to the trial court‘s consideration of the August 2009 

assault in its entirety. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 

2009) (―To avoid forfeiting a complaint on appeal, the party must  ̳let the trial 

 

7At that time, the couple‘s divorce was pending, and the complainant had 

custody of their two children. Although Appellant had visitation rights, this was 

not a scheduled visit. 
14

judge know what he wants, why he thinks he is entitled to it, and to do clearly 

enough for the judge to understand him at a time when the judge is in the proper 

position to do something about it.‘‖) (quoting Lankston v. State, 827 S.W.2d 907, 

909 (Tex. Crim. App. 1992)). A running objection was not needed because, as 

construed in context, the trial court‘s ruling applied globally to all testimony 

related to the August 2009 assault, which the complainant described succinctly. 

The complainant testified to background information between the objection and 

her description of the assault. After describing the assault, the complainant 

testified that she called the police and that charges were filed against Appellant. 

The State does not specify a point at which Appellant waived error by not 

reurging his objection. Cf. Ethington, 819 S.W.2d at 859–60 (holding that when 

counsel objected ―only to the first question‖ and there were three more pages of 

questions and answers on the same subject, ―[i]t is clear from the context of this 

testimony further objection was necessary in some form‖). We conclude that 

Appellant properly preserved error in this instance. Because Appellant did not 

preserve error as to his complaints regarding the other bad acts evidence, the 

remainder of our analysis relates only to this August 2009 incident. 

C. Sufficiency of the Notice 

Although the State does not directly address the sufficiency of its notice, it 

acknowledges in the context of the August 2009 incident that a defendant‘s 

awareness that the State filed assault charges against him is not equivalent to 
15

article 37.07, section 3(g) notice.8 See Graves v. State, No. 02-05-00430-CR, 

2006 WL 3114451, at *3, *7 (Tex. App.—Fort Worth Nov. 2, 2006, no pet.) (mem. 

op., not designated for publication) (citing Hernandez v. State, 176 S.W.3d 821, 

824 (Tex. Crim. App. 2005)); Sarringar v. State, No. 02-02-00102-CR, 2003 WL 

861698, at *4 (Tex. App.—Fort Worth Mar. 6, 2003, pet. ref‘d) (mem. op., not 

designated for publication) (―Article 37.07, section 3(g) mandates that the State 

provide timely notice, not of the existence of extraneous offenses, but of its intent 

to offer such evidence.‖); see also Loredo v. State, 157 S.W.3d 26, 28 & n.3 

(Tex. App.—Waco 2004, pet. ref‘d) (holding that an open file policy cannot 

substitute for a request for notice of State‘s intent to use extraneous bad acts 

evidence).

The State also acknowledges that any article 37.07, section 3(g) notice 

regarding a pending case against Appellant was required to include the date, 

county, and name of the alleged victim to be considered reasonable. Because 

the State‘s notice of intent to offer evidence of ―Previous Acts of Violence against 

[the complainant]‖ did not list specific acts of violence or any associated dates or 

counties, the State‘s notice was insufficient. See Tex. Code Crim. Proc. Ann. art. 

37.07, ' 3(g); Roethel, 80 S.W.3d at 280–81 (holding State‘s notice 

unreasonable when it stated generally that appellant committed aggravated 

 

8

The court of criminal appeals has held, however, that ―under some 

circumstances, when delivered shortly after a defendant‘s request, witness 

statements that describe uncharged misconduct can constitute reasonable notice 

[under Rule 404(b)].‖ McDonald, 179 S.W.3d at 576 (citing Hayden v. State, 66 

S.W.3d 269, 272 (Tex. Crim. App. 2001)).
16

sexual assault of his sister when she was a child); James v. State, 47 S.W.3d 

710, 714 (Tex. App.—Texarkana 2001, no pet.) (holding that notice lacking ―even 

a general statement about the time the acts occurred‖ was inadequate); Brown v. 

State, No. 02-03-00307-CR, 2004 WL 1067774, at *2 (Tex. App.—Fort Worth 

May 13, 2004, no pet.) (mem. op., not designated for publication) (holding that 

when no date is alleged in the State‘s notice, the notice is unreasonable). 

D. Abuse of Discretion

Article 37.07, section 3(g) does not discuss the consequences of the 

State‘s failure to provide the required notice, but ―[t]he logical and proper 

consequence of violations of section 3(g) is that the evidence is inadmissible.‖ 

Roethel, 80 S.W.3d at 281; see Camacho v. State, No. 04-06-00713-CR, 2007 

WL 3270766, at *3 (Tex. App.—San Antonio Nov. 7, 2007, no pet.) (mem. op., 

not designated for publication) (holding that the State‘s notice of extraneous acts 

was unreasonable and that therefore admission of the evidence was error). 

Because the State did not provide Appellant with proper notice, the trial court 

abused its discretion in overruling Appellant‘s objection and allowing the State to 

introduce evidence regarding the August 2009 assault. See Roethel, 80 S.W.3d 

at 281; James, 47 S.W.3d at 714; see also Brown, 2004 WL 1067774, at *2. 

Accordingly, we sustain this portion of Appellant‘s first issue.

E. Harm Analysis

We must next determine whether the error was harmful. ―The admission of 

an extraneous offense into evidence during the punishment phase when the 

State failed to provide notice required by statute is non-constitutional error.‖ 
17

Gonzalez v. State, 337 S.W.3d 473, 485 (Tex. App.—Houston [1st Dist.] 2011, 

pet. ref‘d); Ruiz v. State, 293 S.W.3d 685, 695 (Tex. App.—San Antonio 2009, 

pet. ref‘d); see McDonald, 179 S.W.3d at 578 (assessing harm for failure to give 

notice under rule 404(b) in accordance with rule of appellate procedure 44.2(b)); 

Hernandez, 176 S.W.3d at 825 (analyzing harm in failure to provide 404(b) notice 

under rule 44.2(b) and ―find[ing] helpful‖ the article 37.07, section 3(g) test for 

harm set forth in Roethel).9 An appellate court may reverse a judgment of 

punishment based on a non-constitutional error only if that error affected the 

defendant‘s substantial rights.10 Tex. R. App. P. 44.2(b). 

To determine harm in light of the purpose of article 37.07, section 3(g)—to 

avoid unfair surprise and enable the defendant to prepare to answer the 

extraneous misconduct evidence—we must analyze whether and how the notice 

deficiency affected the appellant‘s ability to prepare for the evidence. Apolinar, 

106 S.W.3d at 414; Roethel, 80 S.W.3d at 281–82; Graves, 2006 WL 3114451, 

at *5. Specifically, we examine the record to determine whether the deficient 

notice resulted from prosecutorial bad faith or prevented the defendant from 

preparing for trial. Roethel, 80 S.W.3d at 282. In determining the latter, we will 

 

9

The court of criminal appeals‘s reasoning is applicable here because rule 

404(b) is incorporated by reference into the provisions of article 37.07, section 

3(g) of the code of criminal procedure. See Gonzalez, 337 S.W.3d at 485 

(applying harm standard articulated in Hernandez to analyze harm under article 

37.07, ' 3(g)).

10―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) (citing Kotteakos v. United States, 328 

U.S. 750, 776 (1946)); Gonzalez, 337 S.W.3d at 485.
18

look at whether the defendant was surprised by the substance of the testimony 

and whether that affected his ability to prepare cross-examination or mitigating 

evidence.

11

 Id. ―A defendant may demonstrate surprise by showing how his 

defense strategy might have been different had the State explicitly notified him 

that it intended to offer the extraneous-offense evidence.‖12 Allen v. State, 202 

S.W.3d 364, 369 (Tex. App.—Fort Worth 2006, pet. ref‘d) (discussing rule 404(b) 

notice and citing Hernandez, 176 S.W.3d at 826). Error in admitting evidence in 

violation of a notice requirement does not have an ―injurious‖ effect on the verdict 

if the defendant was not surprised by the evidence. Hernandez, 176 S.W.3d at 

825 (holding that evidence admitted in violation of rule of evidence 404(b)‘s 

notice requirement is not harmful error if defendant not surprised by evidence); 

Roethel, 80 S.W.3d at 281–82.

In his opening brief, Appellant asserts that the trial court‘s punishment 

decision was ―substantially swayed‖ by the ―erroneous admission into evidence, 

and subsequent consideration of, the testimony elicited by the State concerning 

Defendant‘s alleged commission of extraneous acts of violence against [the 

complainant].‖ See Kotteakos, 328 U.S. at 765 (―[I]f one cannot say, with fair 

assurance . . . that the judgment was not substantially swayed by the error, it is 

 

11Appellant does not assert that the State acted in bad faith, and our harm 

analysis is not based on that component of the Roethel test.

12As Appellant points out, however, the burden to demonstrate whether the 

appellant was harmed by a trial court error does not rest on either party. See

Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Umoja v. State, 965 

S.W.2d 3, 11–12 (Tex. App.—Fort Worth 1997, no pet.).
19

impossible to conclude that substantial rights were not affected.‖). In support, 

Appellant cites to the trial court‘s statements at sentencing: 

Looking over the criminal history that I‘ve been given here, 

you – you have – you had some serious issues here at the start of 

this century. Three convictions for violation – or burglary of a 

vehicle, one for criminal mischief, a felony for burglary, and two 

felonies for delivery of a controlled substance. Then you came back 

in, in ‘07, with the striking an unattended vehicle offense. You were 

placed on probation there, and then I heard that revocation in 

August. And then after that is when you‘re accused of an additional 

assault against this same victim in this case. There‘s some serious 

issues here in my mind. Looks like there‘s some alcohol issues. . . . 

[S]entence of 365 days. 

As a sister court has explained, 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.‖ Camacho, 2007 WL 3270766, at *4 (citing Hernandez, 176 

S.W.3d at 824–25); see Roethel, 80 S.W.3d at 281–82 (explaining same); 

Graves, 2006 WL 3114451, at *5–6. Thus, we do not consider the trial court‘s 

comments in assessing harm in this instance.

In his reply brief, Appellant asserts that ―[g]iven the nature of virtually all of 

the testimony erroneously admitted by the Trial Court, Defense counsel would 

have had no way of  ̳knowing‘ whether the State knew about these alleged 

events, much less whether the State knew about them and intended to introduce 

testimony concerning them into evidence.‖ As to the August 2009 assault, 

however, the record demonstrates otherwise. 
20

On September 25, 2009, Appellant filed a motion for continuance asking 

that his October 2, 2009 trial setting be continued to a later date and explaining 

that 

Defendant was arrested for the offense of Assault Causes 

Bodily Injury/Family Violence on or about September 24, 2009. In 

the interest of justice, Attorney respectfully requests additional time 

to prepare to defend against the new allegations in a potential 

punishment phase at trial.13

The trial court granted Appellant‘s motion, and trial began on November 9, 2009. 

When the State introduced evidence of the August 2009 assault, Appellant‘s 

counsel explained to the trial court that he was ―well aware of the charges‖ but 

that he was ―not aware of the State‘s intent to use that in Punishment.‖ 

It ―strains credulity,‖ however, to think that Appellant was surprised by the 

substance of the complainant‘s testimony or that the lack of formal notice 

affected his ability to prepare for cross-examination, defend against her 

testimony, or to present mitigating evidence. See Hernandez, 176 S.W.3d at 826 

(holding that ―it strains credulity‖ to think that the defendant ―was not on notice 

that the State intended to use his six recorded statements as part of its evidence 

or that he had not prepared to defend against their use.‖). Although Appellant 

asserts that, had he been provided notice, ―he would have been enabled to 

investigate, and to acquire rebuttal witnesses (other than Defendant),‖ trial court 

documents demonstrate that, as to the August 2009 incident, Appellant 

requested (and was granted) a continuance of approximately one month for 

 

13This motion was filed approximately three months after the State had 

filed its article 37.07, section 3(g) notice.
21

these purposes. That Appellant was not surprised by the substance of the 

complainant‘s testimony is further supported by the fact that Appellant did not 

request a continuance or even a short recess to prepare for cross-examination. 

Cf. Graves, 2006 WL 3114451, at *6, *7 n.15 (concluding that Graves was 

harmed by insufficient extraneous offense notice in part because counsel 

specifically requested that his cross-examination of the witness be postponed 

until he had obtained his notes and files); see McDonald, 179 S.W.3d at 578 

(concluding in part that no harm resulted from lack of notice because if defendant 

had been legitimately surprised, he could have requested a continuance). 

Although Appellant did not cross-examine the complainant about the August 

2009 assault, this seems to have been consistent with his apparent trial strategy 

in the punishment phase to blame his actions to a large extent on his issues with 

alcohol. In closing argument, Appellant asked to be placed on community 

supervision, stating that ―if anything, I think everybody agreed that alcohol has 

been a problem in this marriage‖ and that alcoholism ―is something this Court 

routinely curtails in people through the use of probation and terms and conditions 

of said probation.‖ It is difficult to imagine, and Appellant does not explain, how 

his defense strategy might have been different had the State formally notified him 

that it intended to offer the August 2009 extraneous bad act during punishment. 

Thus, we conclude that the error in admitting the extraneous bad acts evidence 

without sufficient article 37.07, section 3(g) notice was harmless, and we overrule 

Appellant‘s second issue. See Tex. R. App. P. 44.2(b). 
22

IV. Conclusion

Having sustained Appellant‘s first issue in part but having overruled his 

second issue, we affirm the trial court‘s judgment.

ANNE GARDNER

JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

WALKER, J. concurs without opinion. 

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: September 22, 2011