Hindaoui, Tyassir v. State ( 2006 )

Affirmed and Memorandum Opinion filed February 9, 2006

Affirmed and Memorandum Opinion filed February 9, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00836-CR

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TYASSIR HINDAOUI, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 974,588

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M E M O R A N D U M   O P I N I O N

Appellant, Tyassir Hindaoui, appeals his conviction for aggravated sexual assault of a child.  In four issues, appellant contends that the trial court erred in admitting evidence of extraneous offenses because the State did not provide reasonable notice of its intent to introduce the evidence.   Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I. Background

The complainant was twelve years old at the time of the offense.  On August 2, 2003, the complainant, her younger sister, and a friend went to an early movie.  After the movie, the three spent the night in appellant=s care.  Appellant bought them some wine coolers, and the girls drank the wine coolers and went to sleep in a room across the hall from appellant=s room. 

The complainant testified that at some time during the night, appellant came into the girls= room, woke her, and brought her to his room.  The next time she was awakened, appellant was on top of her.  She testified that appellant put his penis inside her vagina and moved back and forth.  When she told appellant that he was hurting her, he responded that was how it was supposed to feel.  After he stopped, appellant told her that if she told anyone, it would be her fault. The complainant went to the bathroom and cried.  She noticed she was bleeding.  Some time later, she went back to the girls= room and went back to sleep.  The next morning, appellant took the girls home.  The complainant did not tell anyone what happened.

Several weeks later, the three girls again spent the night at appellant=s house.  The complainant=s sister woke up during the night and saw appellant kissing the complainant. The next morning, the complainant=s sister told her aunt and her grandmother what she had seen.  Her grandmother notified the complainant=s mother, who immediately called appellant and requested that he bring the girls straight home.

After the complainant got back home, her mother asked her if appellant had ever done anything to her. At that point, the complainant described the sexual assault.  The complainant=s mother called 911 and took the complainant to the hospital for a medical exam. A jury found appellant guilty of aggravated sexual assault of a child and assessed punishment at seventeen years= confinement.

II.  Discussion

Appellant contends that the trial court erred in admitting evidence of extraneous offenses because the State did not provide reasonable notice of its intent to introduce the evidence.  See Tex. R. Evid. 404(b); Tex. Code Crim. Proc. Ann. art 38.37 ' 3 (Vernon 2005).  We review a trial court=s decision to admit evidence of extraneous offenses under an abuse of discretion standard.  Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004). 

Rule 404(b) of the Texas Rules of Evidence provides that evidence of extraneous conduct is admissible to the extent it has relevance apart from showing character conformity. Tex. R. Evid. 404(b).  However, when the evidence does not arise from the same transaction, the State (or offering party) must give Areasonable notice@ of its intent to introduce 404(b) evidence in its case-in-chief.  Id.  Article 38.37 of the Texas Code of Criminal Procedure also provides in relevant part that evidence of other crimes, wrongs, or acts committed by the defendant against a child victim shall be admissible when notice is given Ain the same manner as the State is required to give notice under Rule 404(b), Texas Rules of Evidence.@ Tex. Code Crim. Proc. Ann. art 38.37 '' 2, 3 (Vernon 2005).

A.        Provision of Alcohol

In his first and second issues, appellant challenges the trial court=s admission of evidence that appellant provided wine coolers to the three girls on the evening of the offense. It is not disputed that the State failed to provide notice of its intent to introduce the evidence. The State argues, however, that notice was not required because the evidence  arose out of the same transaction.^[1]  See Tex. R. Evid. 404(b) (excepting evidence Aarising in the same transaction@ from the notice requirement).  We agree.

An offense is not tried in a vacuum, and it is well settled that Athe jury is entitled to know all the relevant surrounding facts and circumstances of the charged offense.@ Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986).  Same transaction contextual evidence is admissible Awhen several offenses are >so intermixed or connected as to form a single, indivisible criminal transaction, such that in narrating the one, it is impracticable to avoid describing the other.=@ McDonald v. State, 179 S.W.3d 571, 577 (Tex. Crim. App. 2005) (quoting Rogers v. State, 853 S.W.2d 29, 33B34 (Tex. Crim. App. 1993)).  Otherwise stated, the evidence must be Anecessary to the jury=s understanding of the offense.@ Id. (quoting Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000)).

Here, appellant=s conduct in providing the girls alcohol formed part of the same criminal episode.  This conduct involved the same victim, took place on the same evening, and was inextricably intertwined with the events leading up to the charged offense. Consequently, it would have been impracticable to avoid describing the extraneous conduct in narrating the facts of the charged offense.  The evidence that appellant provided wine coolers was necessary to the jury=s understanding of appellant=s state of mind and intent to  diminish the complainant=s capacity before sexually assaulting her.  See Wyatt, 23 S.W.3d at 25B26 (holding evidence of sexual assault admissible as same transaction contextual evidence when the evidence was necessary for the jury=s understanding of appellant=s intent and motive for murder).  Moreover, the jury was entitled to be informed of the ingestion of any substance likely to have an effect on the complainant=s mood or state of mind at the time of the offense; such evidence was necessary to the jury=s understanding and evaluation of the complainant=s subsequent actions and reactions.  See Heiman v. State, 923 S.W.2d 622, 625B26 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d) (finding evidence that appellant injected cocaine into himself and the complainant at the time of the offense constituted same transaction contextual evidence).  

We hold no notice was required because evidence that appellant provided alcohol to the girls constituted same transaction contextual evidence.  See Tex. R. Evid. 404(b).  Because article 38.37 of the Texas Code of Criminal Procedure incorporates the Rule 404(b) notice provision, we also conclude that no notice was required under article 38.37.  See Tex. Code Crim. Proc. Ann. art. 38.37 ' 3. The trial court therefore acted within its discretion in admitting the evidence.  Accordingly, appellant=s first and second issues are overruled.

B.        Sexual Misconduct

In his third and fourth issues, appellant challenges the admissibility of evidence that appellant kissed and fondled the complainant prior to the indicted offense.  At trial, the complainant testified that appellant first made her feel uncomfortable during her Asixth-grade summer@ when appellant hugged her too tight and Astarted squeezing and rubbing [her] back.@ She then testified that the next time she felt uncomfortable was when appellant kissed her on her lips Aduring March spring break.@ On cross-examination, the complainant was again asked to recall when appellant first made her feel uncomfortable. She testified that she Areally didn=t know,@ but that it was sometime during the beginning of the summer of 2003.

Before trial, the State provided timely notice of its intent to introduce evidence that appellant kissed the complainant on the mouth and touched the breast of the complainant on or about August 2, 2003.^[2]  Appellant argues that the State=s notice was insufficient because the complainant testified as to a kiss that occurred Aduring March spring break@ and inappropriate hugging that occurred her Asixth grade summer.@ However, because victimized children may have difficulty remembering specific dates, courts have given the State leeway concerning the specificity of the date in crimes against children.  Nelson v. State, 126 S.W.3d 700, 704B05 (Tex. App.CAmarillo 2004, pet. ref=d); see Holn v. State, 951 S.W.2d 535, 537 (Tex. App.CBeaumont 1997, no pet.) (notice encompassing a three-and-one-half month span sufficient); Splawn v. State, 949 S.W.2d 867, 871 (Tex. App.CDallas 1997, no pet.) (notice encompassing an eighteen-month span sufficient). 

Moreover, even if the trial court erred in admitting the evidence, the error was harmless.  We must disregard non-constitutional errors which do not affect appellant=s substantial rights.  Tex. R. App. P. 44.2(b); see MacDonald, 179 S.W.3d at 578 (applying Rule 44.2(b) harm analysis when evidence of extraneous conduct was admitted without notice).  An error causes harm under Rule 44.2(b) when it has Aa substantial and injurious effect or influence in determining the jury=s verdict.@  Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005) (quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)).  The purpose of the notice requirement is to prevent unfair surprise.  Id. at 825.  Therefore, any error in admitting the evidence cannot be said to have a Ainjurious@ effect or influence on the jury verdict if appellant was not surprised by the evidence.  Id.  

Appellant does not argue that he was surprised by the State=s offer of the evidence that appellant had inappropriately hugged and kissed the complainant prior to the offense charged.  In fact, the extraneous conduct introduced at trial was listed on the offense report provided to appellant with the date given as March, 2003.  The date on the offense report corresponded to the complainant=s testimony that appellant kissed her during AMarch spring break.@ Further, appellant does not show how his trial strategy would have been different had he received notice of the State=s intent to introduce the evidence with the correct date.  See id. at 825B26 (finding no harm when appellant did not assert that he was surprised by the State=s offer of extraneous conduct, it was reasonable to assume appellant had actual notice, and appellant did not show that his trial strategy would have been altered if he had received notice).  Appellant=s third and fourth issues are overruled. 

Accordingly, the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed February 9, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The State also argues that appellant failed to preserve error because he objected at trial after a witness had responded in the affirmative to the State=s questioning as to whether appellant gave the girls alcohol.  See Tex. R. App. P. 33.1 (requiring timely objection to preserve error); Girndt v. State, 623 S.W.2d 930, 934B35 (Tex. Crim. App. [Panel Op.] 1981).  However, here, after appellant=s objection, the trial court held a hearing outside the presence of the jury for the State to make an offer of proof.  The trial court overruled appellant=s objections, but granted appellant a running objection over the alcohol-related extraneous conduct.  The State then proceeded before the jury to develop the evidence concerning the type and amount of alcohol consumed.  We therefore conclude that appellant=s objection was timely and the alleged error was adequately preserved.

^[2]  August 2, 2003 was the date of the offense as alleged in the indictment.