### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00414- CR

Myron Bishop Head, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 26TH JUDICI AL DISTRICT NO. 09- 1170 -K 26, H ONO RAB LE B ILLY RAY STUB B LEF IELD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant My ron Bi s hop Hea d of four counts of the offe nse of ag g ravated robber

y . See Tex. Penal Code Ann. § 29.03 (West 2011). Punishm ent was assessed
at 75 y ear s’ imprisonment on eac h of counts one, two, and three , and 90 y ear s’ im p ri s o nment on count four, with the s entenc es t o ru n co n currently

. I n five point s of error on appea l, Hea d asser ts that the di strict court: (1) erre d in denying his challeng e to two of t he S t at e’ s p ere mptory strikes; (2) abused its discretion in admitting evidenc e of an extraneous offe nse; (3) abused its discretion in

overr uling Hea d’s objection to an alleg edly improper closing argument by the prosec utor; (4) err ed in not includin g in the char g e on punishment an instruction that the jury must disreg ard cer tain extraneous-off

ense evidenc e; and (5) abused its discretion in admitting evidenc e during punishment of extraneous offe nses for which the State alleg edly failed to provide rea s o n able notice. We will aff irm the judg ments of conviction.BACK GR OUND The jury hear d evidenc e that on the night of Aug ust 9, 2009, five women wer e robbed by two men at g unpoint outsi de a hote l in Round Rock. The evidenc e tended to show that, during the course of the robber y , one of the women attempted to resi s t an d flee but was caught and phy sically assaulted by one of the men, who hit and kicked her repe atedly afte r she had fallen to the g round. Acc ording to the testimony of one of the other victims who had witnessed the assault, afte r the man had subdued the woman, he g rabbe d her purse and jumped into a blue SUV along with the other man, and sped awa

y in the vehicle. The women then ran into the hotel and called the police. Shortly there afte r, afte r rec eiving a descr iption of t h e s uspect vehicle, office rs with the Round Rock Police Depa rtment observe d the vehicle trave ling at a high rate of speed. The office rs initiated purs u i t

. Acc ording to the testimony of one of the pursuing office rs, Serg eant Nate Z oss, one of the suspects was obser ved jumping out of the vehicle as it slowe d down to stop. After the vehicle had stopped, two other suspects fled the vehicle. Remaining inside the vehicle

wer e two fema le suspects later identified as Kimberly Al m an z a and Ashley Markowsky , both of whom wer e arr ested and provided statements. One of the three suspects who had fled the vehicle, later ide ntified as Willi am Ellis, was found walking along side the fronta g e roa d of I H-35 a nd was

arr ested. Ellis was identified a s the driver of the ve hicle. The two other suspects who had fled the vehicle wer e later all ege d t o be the g unmen. One of the g un m en , l at er identified as J ontae L ove, was eventua lly appre hended in San Antonio. The other suspected g unman, He ad, was appre hended on the night of the robber y . Kristopher Fische r, an ey ewi t n es s fo r t h e State, testified that on the night in question, he saw an

2individual with a handgun ge t into an S UV and decide d to fol l o w t he vehicle and call the police. 1

Fische r, who was pursuing the vehicle at the same time as the police, testified that he had observe d

an individual jump out of the vehicle and flee

. Whil e the police continued pursuing the vehicle, Fische r decide d to follow the individual and was able to notify the police of the ind i vidual’s wher eabouts. Eventually , the office rs came upon a man ly ing on the g round in the middle of a field, appre hended him, and broug ht him to Fische r, who identified him as the same individual whom he had been following

. The man, later identified as Hea d, was then arr ested. One of the office rs who had arr ested Hea d testified that a larg e sum of money was found on Hea d’s person, along wi th a wallet conta ining a

n identification ca

rd that belong ed to J ontae L ove. Three of the St a

te ’ s w itne sses wer e Hea d’s alleg ed acc omplices—L ove, Markowsky , and Almanza. They provided detailed testimony implicating Hea d in the robber ies. L ove testified
t h at , among other things, he and Hea d had robbed the women at g unpoint and that He ad h ad assaulted one of the women whe n she had r efuse d to ha nd over her purse. Markowsky testified in part that, as they wer e driving awa y following the robb er y , He ad t old her that “[h] e had to pistol-whip that bitch beca use she wouldn’t g ive up her purse.” Almanza testified that, among other things, when Hea d had jumped out of the vehicle during the flig ht from the police, he had possession of the money

that had bee n stolen from the wome n. The jury found Hea d g uilty of all four c ounts of ag g ravated robber y as alleg ed, and punishment was assesse d as noted a bove. This appe al followed.

During the puni shment phase, the State pr esente d evidenc e tending to show that Fische r 1 had also been robbed by Hea d and his acc omplices that night and that, afte r the incident, Fische r had decide d to pursue the r obbers a nd inform the police of

their whe rea

bouts. 3ANALYSIS

Batson challenge

Be fore the jury was em panele d, Hea d made a Batson challeng e to two of the State’s pere mptory strikes, claiming that t h ey wer e rac ially motivated. See Batson v. Kentucky , 476 U.S. 79 (1986). The potential jurors who He ad cla imed wer e struck on the basis of rac e we re juror number 25 and juror number 47, both of whom wer e identified as Afric an-A merica ns. After hear ing argument conce rning the State’s explanations for these strikes, the district court ultimately denied Head’ s Batson challeng e as to both jurors. I n his first poi n t o f er ro r, Hea d asser ts that the district court er

red in de nying his Batson challeng e. I n Batson , the United States Supreme Court held that a prosec utor is forbidden from exercising pere mptory strikes based solely on the rac e of the potential juror. Id

. at 89. To succe ed

on a Batson challeng e, the defe ndant must demonstrate, by a preponde ranc e of the evidenc e, that the prosec utor indulge d in pur poseful discrimination ag ainst a member of a constitutionally -protec ted class in e x erc ising his pe remptory challeng es. W atkins v. State , 245 S.W .3d 444, 447 (Tex. Crim. App. 2008). There is a three -step proce ss for evaluating claims that a prosec utor has impermissibly exercised its pere mptory challeng es on the basis of rac e. See Hernande z v. New Y

ork , 500 U.S. 352, 358 (1991). “F irst, the defe ndant must make a prima fac ie showing that the prosec utor has exercised pere mptory challeng es on the basis of rac e.” Id

. (citing Batson , 476 U.S. at 96-97). “Second, if the requisite showing has been made, the burden shifts to the prosec uto r to articula te a rac e-ne utral explanation for striking the jurors in question.” Id

. (citing Batson , 476 U.S. at 97-98). “F inally , the trial court must deter

mine whether the defe ndant has car ried his burden of proving purposef ul discrimination.” Id . (citing Batson , 476 U.S. at 98).

4On appea l, the State does not dispute that Hea d satisfied his step-on e o b l i gati on

to make a prima fac ie showing that the State exer ci s ed i ts pere mptory challeng es on the basis of

rac e, nor did the State challeng e that showing below. Thus, our revie w is confine d to the second and third steps of the analy sis. “At the second step of this proce ss, the proponent of the strike need only 2 tender an explanation that is r ace -neutra l on its face .” W atkins , 245 S.W .3d at 447 (c iting Purkett

v. Elem , 514 U.S. 765, 767-68 (1995))

. “The ultimate pla usibili ty of that rac e-ne utral explanation is to be considere d as p ar t of the third step of the analy sis, in which the trial court deter mines whether the opponent of the strike (usually the defe ndant) has satisfied his burden of persua sion to est ab l i s h b y a preponde ranc e of the evidenc e that the strike was indeed the product of the proponent’s pur

poseful discrimination.” Id . (citing Purkett , 514 U.S. at 768). “Whether the opponent [of the strike] satisfies his burden of persua sion to show
t h at t h e proponent’s fac ially rac e-ne utral explanation for his strike is pre- text ual, not g enuine, is

a question of fac t for the trial court to resolve in t h e fi rs t i n s t an ce .” Id

. (citing Gibson v. State , 144 S.W .3d 530, 534 (Tex. Crim. App. 2004) (“The term ‘pre text ’ is solely a question of fac t; there is no issue of law.”) ). According ly , on appea l, a trial court’s ruling on the i ssue of discriminatory intent must be sustained unless it is “cle arly err oneous.” Snyder v. Louisi ana , 552 U. S

. 4 72, 477 (2008); W atkins , 245 S.W .3d at 447-48. In other words, the trial court’s ruling will not be disturbed

on appea l unless the revie wing court is “lef t with a definite and firm conviction t h at a mistake has been committed.” Hernande z , 500 U.S. a

t 369. “This is a highly defe rential standard beca use the trial cou rt i s i n the best position to deter mine whether a prosec utor’s fac ially rac e-ne utral explanation for a pere mptory strike is g enuinely rac e-ne utral.” Gibson , 144 S.W .3d at 534; see also

Consequently , we are not called upon to ad d re s s t h e implications of Hassan v. State , 2 369 S.W .3d 872, 875-78 (Te x . Crim. App. 2012). 5United States v. W illiams , 264 F.3d 561, 572 (5th Cir. 2001) ( Batson inquiry is “ quintessentially a questio n o f fa ct which turns heavily on demea nor and other issues not discerna ble from a cold

rec ord, such that d ef

er en ce to the trial court is highly war rante d”). There fore , “in the absenc e of exceptional circ umstances,” we are to defe r to the trial court. Hernande z , 500 U.S. at 366. We may not substitut e our opinion for the trial court’s fac tual assessment of the neutra lity of the prosec utor’s explanation for exercising strikes, and we focus on the g enuinene ss, rathe r than the rea sonablene ss, of the prose cu t o r’ s as s erted nonrac ial motive. Gibson , 144 S.W .3d at 534. Moreove r, we are to view the evidenc e rele vant t o t h e B a t son challeng e in the light most favor able to the trial court’s ruling

. Cantu v

. State , 842 S.W .2d 667, 689 (Tex. Crim. App. 1992); Moore v. State , 265 S.W .3d 73, 78 (Tex. App.—Houston [1s t Dist.] 2008, no pet.).

W e beg in our analy sis with juror 25. The State offe red multipl e explanations fo r this strike, specifica lly

that the juror had stated tha t she favor ed a se ntence based on r ehabilitation

ov er p u n i s h m ent or deter renc e, had indicated that she believed it was unfair for a co-de fenda nt to rec eive a reduc ed sentenc e if he testified for the Stat e, an d h ad children in the same ag e rang e

as the defe ndant. These are leg itimate, rac e-ne utral rea sons for striking a potential juror. See, e.g. , Johnson v. State , 68 S.W .3d 644, 649 (Tex. Crim. App. 2002) (juror’ s perc eived bias ag ainst aspec t of case ); Moore v. State , 265 S.W .3d 73, 87 (Tex. App.—Houston [1st Dist.] 2008), pet. dism’d, improvidently granted , 286 S.W .3d 371 (Tex. Crim. App. 2009) (j u ro r’ s pare ntal status); Mo ntgomery v. State , 198 S.W .3d 67, 76 (Tex. App.—For t Worth 2006, pet. ref

’d) (belief i n reha bilitation as primary g oal of punishment); see also Bell v. Ozmint , 332 F.3d 229, 240 n.5 (4th Cir. 2003) (juror had children of simil ar ag e to defe ndant). Thus, the rema ining qu es t i o n is whether the rec ord, viewed in the light most favor able to the denial of the Batson challeng e, supports

6the district court’s f inding that Head failed to prove by a pre pondera

nce of the evidenc e that these

rac e-ne utral re asons wer e not g enuine but instead w ere a pre text for r acia l discrimination.

We conclude that the rec ord supports the district court ’s finding

. The defe ndant

was approximately 20 y ear s old at the time he alleg edly committed the offe nse. I t is undisputed that juror 25 had children in the age rang e of 19 to 21. Thus, the di strict court would not h av e cl early

err ed in finding that this explanation for the strike was g enuine. Hea d contends that the stated rea son

was not g enuine beca

use there wer e other jurors who had children who wer e not struck. Howeve r, the rec ord ref

lects that thes e other jurors had children who wer e further remove d in ag e from the defe ndant, including juror 4, who had children in the rang e of 3 to 25; juror 9, who had children in the rang e of 2 1 t o 3 1 ; and juror 50, who had children in the rang e of 26 to 35. Thus, the 3 district court could have rea sonably conclude d that these other jurors wer e not simil arly situated to the j uror who was struck. Hea d also asser ts that the ag e ex planation was not g enuine because the State never questioned the jurors about how having children simil ar in a g e to the defe ndant would aff ect their judgme nt. Howeve r, a lack of questioning does not automatically undermine a proposed

rac e-ne utral explanation. See Chambers v. State , 866 S.W .2d 9, 24 (Tex. Crim. App. 1993). Her e, the district court would not have clea rly err ed in concluding that the prosec utors, based on their prior trial experience , g enuinely believed that having children w ho wer e similar in ag e to t he defenda nt could have a tende ncy

to make the juror

more sy mpathetic to the def

endant’ s circumstanc es.

These ag e rang es wer e presumably g leane d from the juror information car ds, which have 3 not been included in the rec ord on ap p ea l. Howeve r, the prosec utor rec ited these ag e rang es in open court on the rec ord, and they wer e not disputed by Hea d. Acc ording ly , we ar e t o acc ept these statements by the prosec utor as true. See Emerson v. State , 820 S.W .2d 802, 804 (Tex. Crim. App. 1991). 7Additionally , the S t at e gav e rea sons for striking juror 25 other than the ag e of her

children. When the pr osecutor a sked if it wa s “fa ir” for a co- defe ndant to testify

and “g et a de al,” juror 25 answe red, “I don’t think it’s fair.” A critica l component of the State’s case , the district court could have rea sonably found, was the t es t i mony of Hea d’s co-de fenda nts. The prosec utor also noted at the time the question was asked that juror 25 had a “s k ep t i ca l ” fac e “ag ain,” which, the district c ourt could have rea sonably surmised, indicated tha t the prosec utor had e arlier noticed the juror’s demea

nor in response to the prosec utor’s questions and was g enuinely conce rned about the juror’s attitude toward the State. J uror 25 also was the first juror to a nswer that “re hab” should be the prim ary purpose of a defenda nt’s sentenc e. Finally , juror 25 was one of t he jurors who, when asked if she could disreg ard illeg ally obtained evide nce if

instructed to do so, answe red, “ No.” In conclusion, t here wer e multiple rea sons for the State to strike juror 25 that had nothi ng to do with her rac e, and on this rec ord, we cannot conclude that the district court clea rly err ed in concluding that these re asons wer e g enuine.

Reg arding juror 47, the stated rea sons for this strike wer e that juror 47 had children in the same ag e rang e as the defe ndant and was un empl oy ed. These are leg itimate, rac e-ne utral

rea sons for a strike. See Adair v. State , 336 S.W .3d 680, 687 (Tex. App.—Houston [1st Dist.] 2010, pet. ref ’d) (employ

ment status); Moore , 265 S.W .3d at 87 (childre n). And, on this rec ord, we cannot conclude that t h e d istrict court clea rly err ed in finding that Hea d failed to satisfy his burden to prove that these rea sons wer e a prete x t for rac ial discrimination. I t was undisputed that juror 47 had children in the same ag e rang e as the defe ndant, and the prosec utor explained her rea soning for the strike as follows: “I was looking for [children ag es] 19 to 21, beca use the Def

endant’ s specific ally 20 y ear s old. So those are the specific ag e rang es that on my no t es I circled, a C for child and a circ le, which [j uror 47] had.” I n response , Hea d pointed out that other jurors also had children, but 8he did not counter the prosecutor’s ex planation t hat t he S tate was looking for jurors with childre n in a specific , narr ow ag e ra

ng e. Nor did H ead challeng e in a ny way the g enuinene ss of the State’s additional rac e-ne utral explanation that it had also struck juror 47 beca use she was unemploy ed. Thus, there is nothing in this rec ord that leave s us “with a definite and firm conviction that a mistake has been committed” in the district court’s denial of Hea d’s Batson challeng e as to this juror. See 4 Hernande z , 500 U.S. at 369. We overrule Hea d’s first point of er ror.

Evid entiary objec tions du ring guil t-innocence

Prior to the testimony of Kristopher Fische r, Hea d obj ec t ed t o t he admission of evidenc e tending to show that Fische r had observe d Hea d in possession of a firea rm on the night of the robber

y . Hea d argued that this wa s extraneous-off ense evidenc e admitted solely for char acte rconfor mity purposes and that it was more prejudicia l than probative. See Tex. R. Evid. 403, 404(b). The dist rict court overr

uled Head’s objections to the evidence. In his second point of error, Head

asser ts that the district court abuse d its discretion in admitti ng the evidenc e.

We revie w a trial court’s decision to admit or ex cl u d e ev i dence for an abuse of discretion. Ramos v. State , 245 S.W .3d 410, 417-18 (Tex. Crim. App. 2008). The test for abuse of disc re t i o n i s whether the trial court acte d arbitra rily or unrea sonably , without ref ere nce to any

Moreove r, to the extent that harm i s rele vant to our analy sis, we also observe that the 4 twelfth juror to be seate d on the j u ry i n t h i s ca se was juror 45. There fore , juror 47 would have been selec ted, if at all, as the alter n at e j u ro r. Bu t the alternate juror in this case was never called upon to serve . Consequently , even if the district court had sustained Hea d’s B a t son challeng e to juror 47, she w ould not have de liberate d on the ca se, and thus He ad would be una ble to show that he was harme d by the err or, if an y , i n ex cl u d ing the juror. See Rousseau v. State , 855 S.W .2d 666, 680 (Tex. Crim. App. 1993); Johnson v. State , 959 S.W .2d 284, 294 (Tex. App.—Dallas 1997, pet. re f’d)

. 9g uiding rules or principles. Montgomery v. State , 810 S.W .2d 372, 380 (Tex. Crim. App. 1990).

A t rial court abuses its discretion only when its decision “is so clea rly wrong as t o lie outside that zone within which rea sonable pe rsons might disag ree .” McD onald v. State , 179 S.W .3d 571, 576 (Tex. Crim. App. 2005).

Evidence of other crimes, wrong s, or acts is not admissible to prove the char acte r of a per son in order to show a ction in conformity there with. Tex. R . Evid. 404(b). I t may , howeve r, be admissible for other purposes, such as proof of motive, opportunity , intent, prepa ration, plan, knowledg e, identity , o r absence of mistake or acc ident. Id

. “The exceptions listed under Rule 404(b) are neither mutually exclusive nor collectively exhaustive.” De L a P a z v. S tate , 279 S.W .3d 336, 343 (Tex. Crim. App. 2 0 0 9 ). “‘Rule 404(b) is a rule of inclusion rathe r than exclusion.’” Id

. (quoting United St ates v. Bowi e , 232 F.3d 923, 929 ( D.C. Cir. 2000)). “The rule excludes only that evidenc e that is offe red (or wil l b e u s ed ) solely for the purpose of proving bad char acte r and hence conduct in confor mity with that bad char acte r.” Id

. (citing Rankin v. State , 974 S.W .2d 707, 709 (Tex. Crim. App. 1996)). A trial court’s ruling on extraneous offe nse evidenc e is g ener ally within the zone of rea sonable disag ree ment “if the evidenc e shows that 1) an extraneous transac tion is rele vant to a materia l, non-prope nsity issue, and 2) the probative value of that evidenc e is not substantially outweig hed by the dang er of un fa i r p re j u dice, confusion of the issues, or misleading of the jury .” Id

. at 344 (citing Santellan v. State , 939 S.W .2d 155, 1 6 9 (Tex. Crim. App. 1997)). Her e, the rec ord supports the district court’s finding that the evidenc e was admissible for purposes other than char acte r confor mity

. Specifica lly , the district court would not have abused its discretion in finding that Fische r’s testimony tended to estab l ish Hea d’s identity as one of the g unmen during the robbe ry and to corr oborate the testimony of the acc omplice witnesses. See

10Lawt on v. State , 913 S.W .2d 542, 553 n.9 (Tex. Crim. App. 1995); Lacaze v. State , 346 S.W .3d 113,

119 (Tex. App.—Houston [14t h Dist.] 2011, pet. ref ’d). Additionally , the district c ourt would not have abused its discr etion in f inding that beca

use Fische r’s observation of Hea d in possession of a firea rm occur red on the same night and at around the same time as the char g ed offe nse, the evidenc e had a tendenc y to impart “information e ssential to unde rstanding the context and circ umstances of the events” surrounding the char g ed offe nse and thus qualified as “same transac tion cont ex t u al evidenc e,” which is another purpose for which extraneous-off ense evidenc e is admissible under Rule 404(b). See Camac ho v. State , 864 S.W .2d 524, 532 (Tex. Crim. App. 1993).

Nor wo u l d i t have been outside the zone of rea sonable disag ree ment for the district court to conclude that the probative value of the evidenc e was not substantially outweig hed by the dang er of unfair prejudice

. “The term ‘proba tive value’ ref

ers to the inhere nt probative forc e of an item of evidenc e—that is, how strong ly it serve s to make more or less probable the exis tence

o f a fa ct of conseque nce to the litigation—coupled with the proponent’s need for that item o f evidenc e.” Casey v. State , 215 S.W .3d 870, 879 (Tex. Crim. App. 2007). “‘U nfair prejudice ’ ref ers to a tendenc y to sug g est decision on an improper basis, co m m o n l y , though not nece ssarily , an emotional one.” Id

. “Rule 403 favor s the admission of rele vant evidenc e and car ries a presumption that rele vant evidenc e will be more probative than prejudicia l.” W illiams v. State , 958 S.W .2d 186, 196 (Tex. Crim. App. 1997). Evidence should be excluded under r ule 403 only

when ther e exists “a clea r disparity betwee n the deg ree of prejudice of the offe red evidenc e and its probative value.” Jones v . State , 944 S.W .2d 642, 653 (Tex. Crim. App. 1996).

Her e, the district court could have rea sonably found that the probative value of the evidenc e was high. The victims of the robber y wer e unable to identify the men who had robbed them at g unpoint. Thus, the district cour t co u l d have rea sonably conclude d that the State neede d 11Fische r’s testimony in order to corr oborate the tes t i mony of the acc omplice witnesses who had

identified Head as one of the gun m en . At t h e same time, the di strict court could have rea sonably conclude d that th er e wa s n o t a “cle ar disparity ” betwee n the deg ree of prejudice of the offe red evidenc e and its probative value. Fischer d i d not descr ibe the circ umstances surrounding Hea d’s possession of the firea

rm. I nstead, the prosec utor simply asked Fische r if, around 2:00 to 3:00 in the morning , Fische r saw an individual, later identified as Hea d, with a small, black handg un in his hand. Fisch e r answe red in the aff irmative. That was the extent of Fische r’s testimony reg arding the firea rm during the g uilt / i nnocenc e phase

.

On this rec ord, we cannot conclude that the district co u rt ab u s ed its discretion in admitting the evide nce. We ove rrule H ead’ s second point of e rror .

Im proper jury ar gum ent

I n his third point of err or, Hea d asser ts that the district court abuse d its discretion in overr uling Hea d’s objection to an argument by the prosec utor during cl o s i ng that, in Hea d’s view, constituted an improper comment on Hea d’s rig ht to a jury trial. The argument to which Hea d objected w as the following : [P rosec utor]: So now we’ re g oing to t alk about J ontae L ove. And

someh o w h e’ s looking out for number one? Any body else want to do 40 y ear s, ag g rava ted robber

y ? Forty y ear s? Do y ou think he g ot some kind of swee thear t deal for that? And y ou know, Def

ense is rig ht, ever

y one is entitled to a jury trial. E very one does have the rig ht to a jury trial. But y ou sure d o get p o i n ts for not making the victims testify in a jury trial

. And eve ry

other c o-def

endant— [Defense counsel]: I object, Your Honor. That’s an impingeme nt on my client’s rig ht to ge t a fa ir trial.

12[P rosec utor]: Responding to Def ense c ounsel. Ithink it’s open arg ument, and he’s imply ing t h at s o mehow there was some swee t deal which, by acc epting responsib il ity and pleading g uilty , should also be c onsidered. [The Court] : I ’m not sure I understand y

our objec tion. [Defense counsel]: Your Honor, it’s com m en t i n g o n my client’s rig ht to a jury

trial. [P rosec utor]: I ’m responding to Def ense counsel’s argument, Your Honor. [The Court] : All rig ht. Objection is overr uled. [P rosec utor]: He said ever y one has the rig ht to a jury trial. You re member, that’s the first thing he said when he stood up. Everyone has the rig ht to a jury trial. But y ou know what? You sure do g et cre dit for acc e p ti n g r e s p o nsibili ty and not making someone g o throug h a jur y t ri al, and that’s what J ontae L ove did. He could have—he has a rig ht to a jury trial, too. He has just the same rig ht. And he could have said, “S t at e, meet y our b u rd en. I ’m not g oing to plead g uilty

. I ’m not go i n g t o acc ept responsibility . I ’m not g oing to a ssist. I ’m not g oing to try to rig ht the wrong that I ’ve committed.” He could have done that. I nstead, he stood up and took fort y y ear s on ag g ravated robbe ry . Proper jury argument g ener ally falls within one of four g ener al are as: (1) summation of the evidenc e; (2) rea sonable deduction from the evidenc e; (3) answe r to argument of opposing counsel; and (4) plea for law enfor ceme nt. Brown v. State , 270 S.W .3d 564, 570 (Tex. Crim. Ap p . 2 008); Alejandro v. State , 493 S.W .2d 230, 231 (Tex. Crim. App. 1973); W atts v. Sta t e , 371 S.W .3d 448, 457 (Tex. App.—Houston [14t h Dist.] 2012, no pet.). We review a trial court’s ruling on an objection to improper jury ar gu m en t fo r abuse of discretion. See Garcia v. State , 126 S

. W

. 3 d 9 21, 924 (Tex. Crim. App. 2004); Nzewi v. State , 359 S.W .3d 829, 841 (Tex. App.—Houston [14t h Dist.] 2012, pet. ref ’d). A trial court abuses its discretion when it a cts arbitra rily or unrea sonably , without ref ere nce to any g uiding rules and principles. Mo ntgomery 13v. State , 810 S.W .2d 372, 380 (Tex. Crim. App. 1990). Under this standard, we are to uphold the

trial court’ s ruling unle ss it is so clea rly wrong as to lie outside that zone within which rea sonable persons mig ht disag ree . McD onald v. State , 179 S.W .3d 571, 576 (Tex. Crim. App. 2005).

He ad asser

ts that the prosec utor’s argument was an improper comment on Head ’s elec tion to proce ed with a jury trial. See Villareal v. State , 860 S.W .2d 647, 649 (Tex. App.—Waco 1993, no pet.). “When a comment is made by a pros ec u t o r re gar d ing a defe ndant’s elec tion to proce ed with a jury trial, the conce rn of the cou rt centers around whether the prosec utor had, in eff ect, asked the jury to punish or otherwise penalize the d ef en d an t fo r exercising his rig ht to a trial by jury .” Carlock v. State , 8 S.W .3d 717, 724 (Tex. App.—Waco 1999, pet. re f’d)

. I n this case , the district court would not have abused its discretion in concluding that the prosec utor’s argument was not a comment o n Hea d’s rig ht to a jury trial, but instead was a response to defe nse counsel’s argument attacking the cre dibilit y of L ove’s testimony

. Specifica lly , defe nse co u n s el had argued that beca use L ove had testified for the State, and did so reluc tantly , L ove must have rec eived some sort of “dea l” from th e S t at e i n ex change for his testimony

. The 5

Specifica lly , defe nse counse l had ar g ued, 5 And then we’ ve g ot J ontae L ove. . . . And t h e p ro s ec u tor had to direc t him or basica lly drag him like a stubborn mule throug h his testimony

. I ’m not sure how much information y ou rea lly g et or how much y ou can rea lly evaluate the cre dibilit y of a person who’s answe ring or nodding y es or no or g runting

. He didn’t say a whole lot. He was being forc ed throug h his te stimony by the State in order to g et the deal he g ot, and that doesn’t sound like too g ood a dea l, either. Def ense counsel went on to sug g est that it was L ove, and not He ad, who had assaulted one of t he victims: And the last thing [L ove]’s not being direc t with y ou about is who struck [t he victim] with the pistol—or with a handg un; put it that way . You know, he came in here and testified ag ainst Mr. Hea d, but y ou know he’s doing it for the same rea son ever y one else is. He’ s doing it to look out for number one, and he’s doing it— i f he’s g oing 14clea

r implication of defe nse counsel’s argument, the district court could have rea sonably found,

was that L ove’s testimony was not to be trusted. There fore , the district court could have rea sonably

co n cl uded that the prosec utor was mere ly counter ing defe nse counsel’s cre dibilit y argument by placing L ove’s decision to testify in a positive light, arguing that by cooper ating with the State, L ove

was taking responsibility for his a ctions. At no point during the argument did the prosec utor ref er to Hea d’s decision to proce ed with a jury trial or request t hat t he jury punish Hea d for procee ding
to trial. The argument wa s fo cu sed solely on J ontae L ove and his decision to cooper ate with the State, which, defe nse counsel had argued, made L ove’s testimony not cre dible. Additionally , at the beg inning of hi s ar gu m en t , d efense counsel had st ated that “eve ry body has a rig ht to a jury trial.” T h e prosec utor, in his argument, expressly ref err ed to this statement of defe nse counsel and i n fac t agre ed with it. The prosec utor then proce eded to use defe nse counsel’s statement to answe r counsel’s attack on L ove’s c redibility . For these re asons, it would not have bee n outside the zone

o f rea sonable disag ree ment for the district court to conclude that the prosec utor’s argument was nothing more than a response to the argument of opposing counsel. See Carlock , 8 S.W .3d at 724; Taylor v. State , 987 S.W .2d 597, 599-600 (Te x . App.—Texarkana 1999, pet. re f’d)

. We overrule Hea d’s third point of err or.

P uni shme nt issu es Alleged charge error During the punishment phase, the State introduced ev i dence tending to show that multipl e robber ies wer e committed by J ontae L ove on or about J uly 24, 2009. The State soug ht to

to do that, he ’s g oing to minimiz e his own par ticipation where ever

possible. He’s g oing to blame other people for what he’s done. Don’t y ou know that’s what he did in this case? Don’t you know that? 15prove that Hea d had participated in those robber ies. I n his fourth point of er ror, He ad asse rts that the district court err ed in ref using his reque st to include instructions in the court’s punishment char g e that the jury must

disreg ard this evidenc e. We revie w claims of jury char g e err or under the two-prong ed test set out in Almanza

v. State , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’ g); see Swearingen v. State , 270 S.W .3d 804, 808 (Tex. App.—Austin 2008, pet. ref ’d). We first deter

mine whether err or exis ts. Ngo v. State , 175 S.W .3d 738, 743 (Tex. Crim. App. 2005); Swearingen , 270 S.W .3d at 808. I f err or exi s t s , we then evaluate the harm cause d by the err or. Ngo , 175 S.W .3d at 743; Swearingen , 270 S.W .3d at 808. The deg ree of harm requi re d fo r reve rsal depends on whether that err or was prese rved in the trial court. When err or is prese rved in the trial court by timely objection, the rec ord must show only “some harm.” Almanza , 686 S.W .2d at 171; Swearingen , 270 S.W .3d at 808. By contra st, unobjected- to char g e err or requi re s re v er sal only if it resulted in “eg reg ious harm.” See Neal v. State , 256 S.W .3d 264, 278 (Tex. Crim. App. 2008).

The alleg ed char g e err or in this case conce rns the evidenc e prese nted at punishment. “F or purposes of assessing punishment, the prosec ution may offe r evidenc e of any extraneous crime

or bad act that is shown, bey ond a rea sonable doubt, either to have been (1) an act committed by the defe ndant or (2) an act for which he could be held criminally responsible.” Fields v. State , 1 S.W .3d 687, 688 (Tex. Crim. App. 1999) (citing Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West 2005)). Howeve r, “[t] he statute require s that such evidenc e may not be considere d in assessing punishment until the fact -f

i n d er is satisfied bey ond a rea sonable doubt that these prior acts are attributable to the defe ndant.” Id

. Acc ording ly , when extraneous-off ense evidenc e is offe red during punishment, the district court is require d to instruct the jury that such evidenc e may not be considere d in assessing

16punishment until the j u ry i s s atisfied bey ond a rea sonable doubt that the extraneous offe nse is

attributable to the de fenda nt. Huizar v. State , 12 S.W .3d 479, 484 (Tex. Crim. App. 2000). Her e, the district cour

t provided the re quired instruction:

You may consider evidenc e of an extraneous crime or bad act in assessing punishment even if the Def endant has not y et been char g ed with or finally convicted of the crime or act. Howeve r, y ou may consider such evidenc e only if the extraneous cri m e o r bad act has been proven by the State bey ond a rea sonable doubt to have been c ommitt ed by

the def endant. T here fore , if y ou find bey ond a rea sonable doubt that the defe ndant committed an extraneous crime or bad act, then y ou may consider such evidenc e in assessing the defe ndant’s punishment. Howeve r, if y ou have a rea sonable doubt as to whether the defe ndant committed an extraneous crime or bad act, then y ou may not consider such evidenc e in assessing punishment.

Hea d asser

ts that an additional instruction was re quired. Ac cording to H ead, the jury should have also been instructed that it must disreg ard evidence tending to show that J ontae L ove committed

cer tain robber ies on J uly 24, 2009, beca use, in Hea d’s view, there was no evidenc e prese nted that he had participa ted in those robber ies. In essenc e, Hea d was asking the district court for an “instructed

v er d i ct ” that the State had failed to prove his participa tion in the robber ies. Hea d cites t o n o authority requiringthat such an instruc tion be g iven, and we are awa re of no such authority

. 6 Additionally , contra

ry t o He ad’s asser

tion, there was evidenc e prese nted that he had participa ted in the other robber ies. Specifica lly , Kimberly Almanza, who admitted that she was prese nt when the robber ies occur red, testified that Hea d had also participa ted. Additionally , two of the victims testified that there was a second man involved in the robber ies, and the jury could have

rea sonably

inferr ed fr om other evide nce in the c ase tha t this second man was in fac t Hea d. I t was

At trial, defe nse counsel acknow ledg ed that his reque st was “ver y unusual” and provided 6 no authority

to support his requested instruc tion. 17for the jury to decide whether the State had proven bey ond a rea sonable doubt th at Hea d had

participa ted i n the robbe ries, and c onsistent with the law applicable to the case , the cour t’s char g e instructed the jury of that require ment. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)

. On this

rec ord, we cannot c onclude that the district c ourt’s cha rg e wa s err oneous. We overrule Hea d’s fourth point of e rror .

Notice I n his fifth po i n t o f err or, Hea d asser ts that the district court abused its discretion in admitting extraneous-off ense evidenc e offe red by the State during the punishme n t h ea ri ng . Acc ording to Hea d, the State failed to provide rea sonable notice of its intent to introduce extraneousoffe nse evidenc e rela ting to crimes and bad acts that Hea d alleg edly co m m i t t ed ag ainst Kristopher F ischer, Christina Ta bor, Tracy Parker , and Anna Cory , eac h of whom testified during the punishment hear ing.

We revie w a trial court’s ruling reg arding whether the State provided reasonable notice of its inten t t o i n t ro duce extraneous-off ense evidenc e for abuse of discretion. See Hayde n

v. State , 66 S.W .3d 269, 271 (Tex. Crim. App. 2001); Ca still o v. State , 186 S.W .3d 21, 33 (Tex. App.—Corpus Chr i s t i 2 0 0 5 , p et. ref ’d). A trial court abuses its discretion when it acts arbitra rily or unrea sonably , without ref ere nce to any g uiding rules o r p ri n ciples. Montgomery

v. State , 810 S.W .2d 372, 380 (Tex. Crim. App. 1990 ); Di xon v. State , 358 S.W .3d 250, 259 (Tex. App.—Houston [1st Dist.] 2011, pet. ref ’d). We will not reve rse a trial court’s decision admitting evidenc e unless the decision is outside the “zone of rea sonable disag ree ment.” See Moses v. State , 105 S.W .3d 622, 627 (Tex. Crim. App. 2003); Castil lo , 186 S.W .3d at 34.

18Article 37.07 of the Texas Code of Criminal Procedur e g overns the admissibili ty of

evidenc e during punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3. The statute provides that “[o] n timely reque st of t he defenda nt, notice of intent to introduce evidence under this article shall be g iven in the same manner require d by Rule 404(b), Texas Rules of Evidence .” Id

. art. 37.07, § 3(g ). Under Rule 404(b), extraneous-off ense evidenc e is admissible only if “re asona b l e n o t ice is g iven in advanc e of tr i al o f intent to introduce in the State’s case -in-chie f such evidenc e other than that arising in the same transac tion.” Tex

. R

. E v i d

. 4 04(b). The rule does not define what constitutes “re asonable ” n o tice. Howeve r, article 37.07 provides som e guidanc e. For extraneous offe nses that have “not resulted in a final conviction in a court of rec ord or a probate d or suspended
sentenc e, notice

. . . is rea sonable only if the notice includes the d at e o n which and the county in which the alleg ed crime or bad act occur red an d t h e name of the alleg ed victim of the crime or bad act.” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g ). Additionally , the Texas Court of Criminal Appea ls has held that allowing a defe ndant acc ess to the State’s “open file,” without more, does not constitute rea sonable noti ce. See Buchanan v. S t a t e , 9 1 1 S.W .2d 11, 15 (Tex. Crim. App. 1995);

s ee a l s o Roman v. State , 986 S.W .2d 64, 66 (Tex. App.—Austin 1999, pet. ref ’d) (apply i n g Buchanan to article 37.07’s notice provision). What is considere d rea sonable notice depends on the fac ts and circ umstances of eac h case . See Hayden , 66 S.W .3d at 272-73 (Tex. Crim. App. 2001); W eb b v. S tate , 36 S.W .3d 164, 178 (Tex. App.—Houston [14t h Dist.] 2000, pet. ref ’d); Pat t o n v. State , 25 S.W .3d 387, 392 (Tex. App.—Austin 2000, pet. ref ’d). I n this case , it is undisputed that Hea d timely reque sted and the district court order ed the State to provide notice of its intent to introduce evidenc e of extraneous offe nses no later
t h an 10 day s prior to trial, which beg an on J une 14, 2010. In its first written notice of intent to introduce evidenc e of extraneous offe nses, filed on J une 4, 2010, the State made no mention of 19any extraneous offe nses involving victims Fische r, Tabor, Parker , and Cory

. Howeve r, in its

second notice of intent to introduce evidenc e of extraneous offe nses, filed on J une 8, 2010, the State specifie d that it i n t en d ed to introduce evidenc e of an ag g rava ted robber

y committed on J uly 24, 2009, in Travis County , ag ainst Anna Cory

. And, in its third notice of intent to introduce evidenc e of extraneous offe nses, filed on J une 9, 2010, the State included the offe nse of ag g ravated robber y committed on Aug ust 9, 2009, in Travis County , ag ainst Fische r, Parker , and Christina Arnold-Juhl, 7 and the offe nse of ag g ra vated assault committed on the same day and in the same county ag ainst Fische r.

Additionally , at t he hear ing on Hea d’s motion to exclude the extraneous-off ense evidenc e, the prosec utor repr esente d that in a conver sation with defe nse counsel on May 21, 2010, he had discussed the offe nse involving Christina Tabor, informed counsel that Tabor’ s last name in the offe nse repor

t was Arnold-Juhl and that the wi t ness was ref err ed to by the State as “the bac h el o re tte,” and explained some of the circ umstances surrounding the offe nse. The prosec utor further repr esente d that in a separ ate conver sation with defe nse counsel on May 26, he had informed counsel of the name of the detectives who had inve stiga ted the off enses involving Tabor, F ischer, and Parker and had mentioned the victims by name. Finally , the prosec utor repr esente d that in another conver sation with defe nse co u n s el “prior to or on J une 2,” the prosec utor went into

more detail reg arding the offe nses, the victims, and other witnesses involved in the case . As for the separ ate extraneous offe nse involving Anna Cory , the prosec utor repr esente d that the Austin Police Depa rtment did not inform the District Attorney ’s Offic e of the specific circ umstances involving the robber y of Cory until J une 7, 2010. The prosec utor added, “B ut as soon as we wer e awa re that this

Arnold-Juhl was the maiden name of Christina Ta bor, who was marrie d afte r the offe nse 7 was c ommitt ed but prior to trial. 20was an appropr iate case to come in as a punishment circ umstance, we broug ht it to the attention of

defe nse counse l and did so in a timely manner as best we could.” I ndeed, the rec ord reflec ts that 8 the following day , the State filed its second notice of intent to introduce evidenc e of extraneous offe nses, which include d the offe nse involving Cory

.

On this rec ord, we cannot conclude that the district court abused its d i s cr et i o n in finding that Hea d had rea sonable notice of the extraneous offe nses. Reg arding the o ff en s es involving Fische r, Tabor, and Parker , the distri ct court could have impliedly found that althoug h written notice was not provided ten day s prior to trial, defe nse counsel was g iven rea sonable notice of those offe nses throug h multipl e conver sations with the prosec utor prior to or on J une 2, 2010, which wa s more than ten day s prior to trial. See H ayden , 66 S.W .3d at 273 (obser ving that notice need not be “for

malistic” and does not have to be in w riting, so long as actua l notice is c onvey ed). As for the offe nse involving Cory , the district court could have i m pliedly found that even though neither written nor oral notice was provided ten day s prior to trial, the State had rea sonably notified Hea d of the off

ense a nd the victim shortly

afte r the State itself wa s informed of the circ umstances of the offe nse. See, e.g. , Hende rson v. State , 29 S.W .3d 616, 625 (Tex. App.—Houston [1st Dist.] 2000, pet. re f’d) (notice w as re asonable when g iven immediately upon discoveringnew e vidence , wh i ch was eig ht day s befor e evidenc e was introduced at trial); Patton , 25 S.W .3d at 394 (not i ce

was rea sonable when State provided notice as soon as it lear ned of offe nse, even though notice was not r ece ived by

defe ndant until one day

befor e trial); see also W

est v. State , No. 03-05-00371- CR, 2008 Tex. App. L EXI S 8599 , 2 008 WL 4899189, at *6 (Tex. App.—Austin Nov. 14, 2008,

As an office r of the court, an attorney ’s statements on the rec ord, ev en if unsworn, are 8 g ener ally acc epted as true unless the statements are objected to or disputed by opposing counsel. See Holloway v. Arkansas , 435 U.S. 475, 486 (1978); Pitts v. State , 916 S.W .2d 507, 510 (Tex. Crim. App. 1996). 21pet. re f’d) (mem. op., not desig nated for publ ication) (notice given im mediately upon discovering

new e vidence was re asonable when g iven five da y s befor e trial). Moreove r, even if the district court had abused its discretion in finding that the State provided rea sonable notice, we could not conclude on this rec ord that the alleg edly defic ient notice

was harmful. See Tex. R. App. P. 44.2(b). The harm analy sis in this context focuse s on whether the defic ient notice resulted from pro s ec u t o ri al bad faith or preve nted the defe ndant from prepa ring for trial. See Hernande

z v. State , 176 S.W .3d 821, 824-26 (Tex. Crim. App. 2005); Roethel v. State , 80 S.W .3d 276, 282 (Tex. A pp.—Austin 2002, no pet.). Her e, ther e is no alleg ation that the State
acte d in bad faith. I n fac t, during the hear ing, defe nse counsel rema rked that the prosec utor had been “ver y helpful” and “ver

y cooper ative in try ing to help me g et discovery .” Nor is there any indication in the rec ord that Hea d was preve nted from prepa ring for tria l. Head ha s made no showing , either i n t h e co u rt b elow or on appea l, of how his defe nse strateg y might have been differ ent had th e State notified him ear lier of its intent to introduce the extraneous-off ense evidenc e. See Hernande z , 176 S.W .3d at 826. And He ad d i d n o t s eek a continuance of the punishment hear ing, which would be some evidenc e that the defic ient notice aff ecte d his trial strateg y . See McD onald v. State , 179 S.W .3d 571, 578-79 (Tex. Crim. App. 2005). Finally , the rec ord ref lects that in addition to the multipl e conver sations defe nse counsel had with pros ec u t o rs conce rning the extraneous offe nses at issue, wri tten notice of the State’s intent to introduce evidenc e of those offe nses was filed on J une 8 and June 9, 2010, which wa s approximately one we ek bef

ore the evidenc e was admitted at the punishment hear ing held on J une 16 and 17. Def ense counsel acknow ledg ed at the hear ing that he had rec eived “ade quate” discovery in the case , and he made no claim that he was unprepa red for trial. On this rec ord, even if the State’s notice had been defic ient, we could not conclude that Hea d was ha rmed by the def iciency . We overrule Hea d’s fifth point of er ror. 22CONCLUSION We affir m the judgme nts of the district court.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Field Affir med Filed: Apr il 24, 2013 Do Not Publish

23