### 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. 03-11-00186- CR

Ram iro Rea, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT NO. D-1 -DC- 10- 3012 85, H ONO RAB LE DAVID CRAIN, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N A jury found appellant, Ramiro Rea, g uilty of robber y , and he pleade d t ru e t o an enhanc ement for a prior felony conviction. See Tex. Penal Code Ann. §§ 12.42 , 29.02(West 2011). Followingthe punishment phase of trial, at which the State prese nted evidenc e of appellant’ s past criminal off

en s es an d g ang membership, the jury assessed appellant’ s punishment at 14 y ear s in prison. Appellant asser

ts, in a single issue, that he was d ep ri v ed of his rig ht to fair notice by the State’s untimely disclosure of its intent to prese nt punishment evidenc e of appellant’ s g ang membership. We will affir m the conviction.

BACK GR OUND Appellant was char g ed with robber y stemming from an alterc ation that took place on May 29, 2010. On that evening , two men confr onted complainant Rodolfo Mora outside a g roce ry store and demande d money from him. When Mora ref used, one of the men struck Mora, and a fig htensued. Mor a wa s repe atedly hit a nd kicked by the two men. The two assailants took 100 dollars from Mora’ s pocket, as well as his wallet, and fled the scene . Mo ra an d o t h er witnesses to the robber y descr ibed one of the assailants as a male who was wea ring a white t-shirt and had tattoos on his rig ht arm. Mora identified appellant in a photogr aphic lineup as the man with the tattoos and the white t-shirt. On J anuar

y 27, 2011, e ig

ht b u s in e s s d a

y s b e f o re the commence ment of trial, appellant filed three motions with the court. The first, entitled “Ac cused’ s Motion for Discover y ,” reque sted that the court instruct the State to produce “All char acte r evidenc e soug ht to be admitted by the State during the guilt/i nnocenc e and/or punishment phases of this case under Texas R. Crim. Evid. 404(a) , (b) a nd (c) .” The court did not sign a n order or otherw ise rule on the motion. The second mo t i o n , enti tled “De fenda nt’s Motion for Notice,” reque sted that the Court order the attorney for the State (1) to g ive notice, pursuant to Rule 404(b) of the Texas Rules of Evidence, of “its intent to produce evidenc e in its case in chief of any o t h er cr imes, wrong s, or acts alleg edly committed by the defe ndant other than those alleg ed in the indictment

. . . ”; and (2) to g ive notice, pursuant to article 37.07 of the Code of Criminal Procedur e, of “its intent to introduce,
at the punishment phase of the trial, evidenc e of extraneous crimes or bad acts alleg edly committed by the def endant.” The c ourt did not rule on this moti on and did not sign a ny order

. The final motion, like the first two, wa s d i re ct ed t o the t rial court and was entitled “Rule 404(b) Request for Notice of Intent to Offe r Ex trane ous Conduct.” Despite the tit l e, t h e motion st ated that it was f iled pursuant to Rule 404(b) a s well as ar ticle 37.07 and a sked the c ourt to “orde r t he S tate to g ive not ice of its int ention to introduce such evidenc e, if any” of extraneous

2crimes, conduct, or bad acts by the defendant. Ag ain, t he court did not rule on the motion or sig n

an orde r. On Fe bruar y 3, 2011, five day s befor e the trial beg an, the State filed a notice of intent
to introduce evidenc e of extraneous conduct during the g uilt and punishment phases of the trial. This notice g ave ref

ere nce to 16 criminal offe nses, but it did not mention any th i n g about g ang membership. Appellant’s g ang membership was not mentioned until the first day of trial, Fe bruar y 8 , 2 0 1 1. Be fore the t rial bega n, the prosecutor ex plained that he had just lear ned from o n e o f t h e State’s witnesses that appellant had a tattoo indicating membership in Tang o Bla st, a prison g ang . The prosec utor emphasized that the State had only lear ned of appellant’ s alleg ed g ang membership that morning but indicated that it intended to photogr aph the tattoos and int ro duce the photos as evidenc e of appellant’ s g ang memb er s h i p du ring the punishment phase of the trial. Appellant objected, asser

ting that he had made a proper reque st for notice under article 37.07(3)( g ) and that the State had not provided appellant rea sonable notice of its intent to introduce evidenc e of appellant’ s g ang membership. The trial court did not rule on the obj ec t i on at t hat t ime, and appellant did not move for a

continuance . That eve ning, the State photogr aphed a ppellant’s tattoos. The next day , befor e the commence men t of the punishment phase of the trial, appellant rea sserted his objection that he had not rec eived rea sonable notice from the State. Noting that appellant did not asser t any bad faith on behalf of the State, the trial court overr uled appellant’ s objection. The State subsequently called two witness es who testified that appellant’ s tattoos indicated that he was a member of both the prison g ang known as Tang o Bla st a nd the Crips stre et g ang . The defe nse called appellant’ s mother as its only witness. She testified that appellant’ s bad

3behavior should be blamed on her beca use she had beate n him as a child. She testified that her abuse had made her son violent and ha d driven him to become a g angmember.

DISCUSSIO N Following a timely reque st by the defe ndant, the State must p r o v ide rea sonable notice of its intent to introduce evidenc e of extraneous conduct, crimes, or bad acts by the defe ndant. See Tex. R. Evid. 404(b) (relati ng to evidenc e of extraneous conduct introduced during guilt phase of trial); Tex. Code Crim. Proc. Ann. art. 37.07(3)( g ) (West Supp. 2 0 1 2 ) (re lating to evidenc e of
extraneous conduct introduced during punishment phase o f t ri al ). The purpose of these notice require ments is to avoid unfair surprise a nd to allow the def

ense suf ficient time to investiga

te and prepa re a defe nse to the extraneous conduct. See W orthy v. State , 312 S.W .3d 34, 38-39 (Tex. Crim. App. 20 1 0 ) ; He r n a n d

ez v. State , 176 S.W .3d 821, 825 (Tex. Crim. App. 2005). Be cause Rule 404(b) and article 37.07(3)( g ) do not define “re asonable notice,” a court’s deter mination of whether notice is rea sonable depends on the fac ts and circ umstances in eac h individual case . See Patton

v. State , 25 S.W .3d 387 , 3 9 2 (T ex . App.—Austin 2000, pet. ref ’d). The trial court’s decision to admit evidenc e of extraneous conduct during the punishment phase of the trial is revie wed under an abuse- of-discr etion standard. Mitchell v. State , 931 S.W .2d 950, 953 (Tex. Crim. Ap p . 1996); Patton , 25 S.W .3d at 394. The trial court’s decision will not be reve rsed if it is within the zone of

rea sonable disag ree ment. Montgomery v. State , 810 S.W .2d 372, 391 (Tex. Crim. App. 1990).

4Be cause the State in t ro duced evidenc e of appellant’ s g ang membership at the

punishment phase of trial, article 37.07(3)( g)— ra t her than Rule 404(b)—a pplies. Article

1 37.07(3)( g ) of the T exas Code of Criminal Procedure states:

On timely reque st of the defe ndant, notice of intent to introduce evidenc e under this article shall be gi v en i n t he same manner require d by rule 404(b), Texas Rules of Criminal Evidence

. . . . The require ment under this s u b section that the attorney repr esenting the state g ive notice applies only if the defe ndant makes a timely reque st to the attorney

repr esentingthe state for the notice.

Tex. Code Crim. P roc. A nn. art 37.07(3) (g ).

To trig g er the State’s notic e r e q u ir e me nt u

n d e r a r ti c le 3 7.07(3)( g ), the defe ndant must choose e ither to serve the S tate directly with a request for notice or to file a motion re questing the trial court to order such notice. See Mitchell v. State , 982 S.W .2d 425, 427 (Tex. Crim. App. 1998). Be cause a “discove ry motion is not otherwise productive until it is ruled upon by the trial court,” see E s p i nosa v. State , 853 S.W .2d 36, 38-39 (Tex. Crim. App. 1993) (similar analy sis under Rule 404(b)) , a re quest for notice in the form of a motion mus t be signe d and ruled on by the trial cour

t in or der to tr igg er the State’s obliga tion to give notice

. See M itchell , 982 S.W .2d at 427. To hold otherwise w ould ignor e the diff ere nces be tween the leg al underpinning s of motions and reque sts: “[A] ‘motion’ is direc ted to the court and asks the court to take some action, wher eas a self-ope rative

Although the notice require ments of article 37.07(3)( g ) and Rule 404(b) are simil ar, a Rule 1 404(b) reque st does not apply to evidenc e that the State intends to introduce only at the punishment phase of trial. See Ramirez v. State , 967 S.W .2d 919, 923 (Tex. A pp.—Be aumont 1998, no pet.). Howeve r, beca

use the notice require ments of the provisions are s im il a r , c ase law reg arding the notice re qu i re ments of Rule 404(b) is persua sive for the resolution of article 37.07(3)( g ) issues. See President v. State , 926 S.W .2d 805, 808 (Tex. App.—Austin 1996, pet. ref ’d). 5‘re quest’ is direc ted t o a part y an d i n s t ructs the party to take some action without the necessity of

intervention by the court.” President v. State , 926 S.W .2d 805, 808 (Tex. App.—Austin 1996, pet. ref ’d) (empha sis in orig inal). Henc e, until a motion re questing notice from the State is ruled on, it
cannot be assumed that the State has knowledg e of the reque s t , an d no notice from the State is require d. Her e, appellant failed to proper ly reque s t n o t i ce as contemplated by article 37.07(3)( g ). Instead, all three of appell an t ’s requests wer e in the form of discovery motions addre ssed to the t rial court. The mot ions reque sted and required action by the cour t. Be cause the trial court did not rule on these motions, they never beca me eff ective and wer e insufficient to require notice from the State under article 37.07(3)( g ). Be cause appellant failed to reque st notice from the State direc tly , the State was not re quired to pr ovide notice. There fore , the trial court did not err in admitting the e x trane ous evidenc e. 2

Moreove r, even if appellant ’ s r e q u e s t had been proper and the State had been require d
to provide notice, the notice provided by the State here would have been rea sonable beca use the State g ave notice immediately afte r it lear ned of ap p ellant’s alleg ed g ang membership. Nothing in the

rec ord sug g ests that the State knew of appellant’ s g ang membership befor e Fe bruar y 8, and appellant

Appellant asser

ts that when the State g ave notice of its intent to introduce evidenc e of his 2 prior criminal offe nses, the State was t re at i n g h i s motions as proper reque sts under article 37.07(3)( g ). There fore , appellant asser ts that the State should be estopped from argui n g t h at h is reque st was improper under article 37.07(3)( g ). Howeve r, beca use appellant failed to make a proper reque st under article 37.07(3)( g ), and beca use the State was there fore not require d to provide notice, appellant “ca

nnot complain of the timeliness or adequa cy of the notice that the State did g ive.” Smith v. State , No. 03-97-00795- CR, 1999 WL 314755, at *3 (Tex. App.—Austin May 20,1999, pet. ref ’d) ( mem. op., not desig nated f or publication).

6does not alleg e that the State possessed this information befor e trial. Texas courts have consistently

found the State’s notice t o be rea sonable when it is g iven immediately following the State’s discovery of the extraneous conduct. See W est v. State , No. 03-05-00371- CR, 2008 WL 4899189,
at *6 (Tex. App

. — Au s tin Nov. 14, 2008, pet. ref ’d) (mem. op., not desig nated for publication) (notice g iven immediatel y u p o n discovering new evidenc e was rea sonable when g iven five day s befor e trial); Hende rson v . State , 29 S.W .3d 616, 625 (Tex. App.—Houston [1s t Dist.] 2000, pet. ref ’d) (notice g iven immediately upon discovering new evidenc e was rea sonable when g iven eig ht day s befor e evidenc e was int ro d u ce d ); Patton , 25 S.W .3d at 393 (notice g iven immediately upon discoveringnew e vidence was reasona ble when g iven two day s befor e trial). T he State ca nnot be require d to g ive notice of its intent to use extraneous conduct befor e it has knowledg e of such conduct. In any event, appellant’ s failure to file a motion fo r co n t i n u an ce waived his rig ht to complain that he was surprised by the State’s intent to introduce evidenc e of his g ang membership.

We hold that the trial court did not abuse its discr etion in a dmitti ng the evidenc e of appellant’ s g ang membership beca use (1) appellant did not obtain a ruling from the trial court on his motion, nor did he make a reque st to the St ate dire ctly , and the State wa s there fore not r equire d to provide notice, and (2) even if notice was require d, the notice provided by the State was rea sonable beca use the S tate g ave notice as soon as wa s possible, and appe llant failed to see k a continuanc e. We overrule appellant’ s appellate issue.

CONCLUSION

Havingoverr

uled appe llant’s sole issue, we a ffirm the judg ment of convic tion.

7_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Henson a nd Rose Affir med Filed: August 14, 2012 Do Not Publish

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