Carlos Martinez v. State

Affirmed and Memorandum Opinion filed July 24, 2008

Affirmed and Memorandum Opinion filed July 24, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00617-CR

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CARLOS MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1081802

M E M O R A N D U M   O P I N I O N

Appellant Carlos Martinez appeals from his conviction for aggravated robbery.  In two issues, appellant claims the trial court erred by (1) refusing his request for additional peremptory strikes and (2) overruling his objection during the punishment phase to extraneous offense evidence.  We affirm.

Around 10:00 p.m. on August 24, 2006, the complainant, Luis Cruz, was robbed at gunpoint of his wallet, cell phone, keys, and vehicle. Shortly after the robbery, appellant and two other males were apprehended in Cruz=s vehicle.  Cruz=s wallet was found in appellant=s possession; one of the other males had Cruz=s cell phone. Appellant was seated in Cruz=s vehicle near the shotgun that was used in the robbery.  Cruz identified appellant as the person who robbed him at gunpoint.  Following a jury trial, appellant was convicted of aggravated robbery and sentenced to forty years in prison and a $10,000 fine.

I.  Jury Selection

In his first issue, appellant claims the trial court erred by denying his request for extra peremptory strikes during jury selection and by overruling his objection to two members of the jury.  As a result, appellant claims he was deprived of his right to be heard by counsel under the Texas Constitution.  See Tex. Const. art. I, _ 10. 

The right to be heard by counsel under the Texas Constitution includes the right to pose proper questions during voir dire examination and to intelligently exercise peremptory challenges and challenges for cause.  Jones v. State, 223 S.W.3d 379, 382B83 (Tex. Crim. App. 2007).  However, the trial judge is given wide discretion to control voir dire and may impose reasonable restrictions on the exercise of voir dire examination.  Clark v. State, 608 S.W.2d 667, 669 (Tex. Crim. App. 1980).  The decision to grant additional peremptory challenges upon exhaustion of the statutory number of strikes also falls within the trial court=s discretion.  Cooks v. State, 844 S.W.2d 697, 717 (Tex. Crim. App. 1992).  No abuse of discretion will be found for overruling a defendant=s request for additional strikes in the absence of Awrongdoing@ on the part of the trial court.  Id.  AWrongdoing@ may be proved by showing that the trial court improperly overruled a defendant=s challenge for cause and the defendant accordingly used a strike on a juror who was subject to a challenge for cause.  Id.

At the conclusion of voir dire, the trial court called for both sides to submit their for-cause challenges.  Appellant challenged, among others, venireperson number nine.  The State challenged, among others, venirepersons eight, nine, and twenty-four.  The trial court granted all of appellant=s challenges, including the challenge to venireperson nine.  The court also granted the State=s challenge to venireperson twenty-four.  After the court advised the lawyers which for-cause challenges were granted, appellant requested two additional peremptory challenges Abecause the Court is denying our challenge on 8 and 9, the State=s challenge on 24 [sic].@^[1]  The trial court denied appellant=s request.  After the jury members were selected and seated and the rest of the venire panel dismissed, appellant objected to the jury as seated and informed the court that Aif we had been granted the additional two peremptory challenges we had requested, we would have used them on 22 and 25.@  The trial court responded, AThat will be overruled.  Both of those jurors indicated that they would follow the law from the Court on more than one occasion.  And looking at my notes . . . . I found nothing that would indicate a disqualification.@  

Appellant does not argue that his lawyer=s ability to question the venire panel or exercise challenges was restricted.  See Jones, 223 S.W.3d at 382B83 (stating that right to counsel under state Constitution includes right to question members of venire panel in order to intelligently exercise peremptory challenges).  Instead, appellant claims argues that Athe trial court=s ruling on [venireperson eight], on the extra peremptory strikes, and the objection to the jury@ impeded his lawyer=s ability to try his case and deprived him of his right to counsel.  Appellant also claims that the trial court impaired his lawyer=s Aability to get a qualified juror who might be [sic] a better juror for [a]ppellant.@  However, appellant does not direct us to any authority stating that a criminal defendant is entitled to jurors whom the defendant deems more desirable than other qualified jurors.  Nor does appellant cite authority for his position that the trial court=s rulings impaired his lawyer=s ability to try his case.^[2] Appellant has failed to adequately brief this issue, and consequently, he has waived error.  See Tex. R. App. P. 38.1(h) (brief must contain appropriate citations to authority); Hefner v. State, 735 S.W.2d 608, 627 (Tex. App.CDallas 1987, pet. ref=d) (holding appellant who merely cited single, noncontrolling case as supporting authority failed to adequately brief issue and therefore waived error with respect to that issue).

In any event, the record indicates that appellant requested extra peremptory strikes on grounds that the court was denying his challenges to venirepersons eight and nine and the State=s challenge to venireperson twenty-four, even though the court had already granted appellant=s challenge to nine and the State=s challenge to twenty-four, and appellant never challenged number eight.  Our research has not uncovered any authority supporting appellant=s assertion that a defendant is entitled to extra peremptory strikes when the trial court denies a for-cause challenge raised by the State.  Appellant made a second request for additional peremptory strikes on grounds that he objected to the jury as seated and would have used the extra peremptory challenges to strike venirepersons twenty-two and twenty-five.  A trial court=s decision to deny a defendant=s challenge for cause should not be overturned unless, in light of the entire voir dire examination of the prospective juror, bias or prejudice has been established as a matter of law.  Burks v. State, 876 S.W.2d 877, 893 (Tex. Crim. App. 1994).  The trial court stated that venirepersons twenty-two and twenty-five indicated they could follow the law and that the court saw no other grounds on which to find these potential jurors objectionable.  Our review of the record likewise has not revealed any reasons why these venirepersons would have been subject to a challenge for cause.  Accordingly, we conclude the trial court acted within its discretion in denying appellant=s requests for extra peremptory strikes and overruling appellant=s objection to the jury as seated.  See Burks, 876 S.W.2d at 893; Clark, 608 S.W.2d at 669.  The trial court=s rulings did not impede appellant=s lawyer=s ability to try his case and deprive appellant of his right to counsel.  We overrule appellant=s first issue.

II.  Admission of Extraneous Offense Evidence

In his second issue, appellant claims the trial court erred in admitting evidence of an extraneous aggravated robbery during the punishment phase because the State failed to provide pretrial notice of its intent to introduce the aggravated robbery.  We review the admission of evidence of extraneous offenses for an abuse of discretion.  See Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996).

The State notified appellant of its intent to introduce evidence of extraneous convictions, crimes, wrongs, or acts pursuant to Texas Rules of Criminal Evidence 404(b) and 609 and article 37.07 of the Texas Code of Criminal Procedure.  The notice informed appellant that the State intended to introduce evidence that appellant threatened Robert Lopez with a firearm. However, during the punishment phase, Lopez testified that after being threatened, appellant also demanded his wallet.  Appellant objected on grounds that he was not provided with notice as required by article 37.07, and the trial court overruled appellant=s objection.  After clarifying that Lopez gave appellant his wallet, which contained three dollars, the State continued to question Lopez about the shooting of his friend, which had occurred just prior to appellant demanding Lopez=s wallet.

To preserve error in admitting evidence, a party must make a proper objection and get a ruling on that objection.  Tex. R. App. P. 33.1.  In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection.  Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003).  The State argues that appellant waived error because he failed to object each time the State questioned Lopez about his wallet being taken  and did not request a running objection.  We disagree.  Although the prosecutor clarified Lopez=s answer, he did not continue to question Lopez about his wallet being taken.  Thus there was no need for appellant to object again or to request a running objection. Appellant=s timely and specific objection was sufficient to preserve error with respect to this issue.

The State further argues that because appellant failed to request notice as required by article 37.07, the State=s duty to provide such notice was not triggered.  See Tex. Code Crim. Proc. Ann. art. 37.07, _ 3(g) (Vernon Supp. 2007).  Section 3(g) of article 37.07 allows admission of extraneous offense evidence during the punishment phase if the State gives timely notice of its intent to use that evidence.^[3] Id.  The State=s obligation to comply with the notice requirement in article 37.07 is triggered by the defendant either serving the State with a request for notice or filing a discovery motion requesting the court to order such notice and securing a ruling on it.  Henderson v. State, 29 S.W.3d 616, 625 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d).  The trial court signed a general discovery order requiring the State to disclose Aall extraneous offenses, with date, time[,] and place, which may be admissible against the defendant.@  Thus the discovery order triggered the State=s duty to provide notice to appellant that it intended to offer evidence of the aggravated robbery of Lopez.  See Hartson v. State, 59 S.W.3d 780, 787 (Tex. App.CTexarkana 2001, no pet.) (holding appellant was not required to Ado an unnecessary thing@ and request notice because State had to comply with court=s pretrial discovery order requiring such notice).  We conclude appellant properly preserved error with respect to this issue.

Notice is sufficient under article 37.07 if it 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.  Tex. Code Crim. Proc. Ann. art 37.07, _ 3(g).  The State=s notice stated that on August 21, 2006, in Harris County, appellant threatened Lopez with imminent bodily injury by using a firearm.  The notice also stated that on August 21, 2006, appellant caused bodily injury to Lopez=s friend using a firearm.  The notice failed to state that appellant also robbed Lopez. However, the information contained in the notice was specific enough to notify appellant that the State intended to offer evidence regarding the incident where appellant confronted Lopez and Lopez=s friend with a firearm, and this incident included the robbery of Lopez.  We therefore find that the State substantially complied with the notice requirements of article 37.07, section 3(g).  See McQueen v. State, 984 S.W.2d 712, 715B16 (Tex. App.CTexarkana 1998, no pet.) (concluding notice that failed to give county of unadjudicated offense substantially complied with article 37.07, section 3(g) because appellant could reasonably infer missing information); Hohn v. State, 951 S.W.2d 535, 537 (Tex. App.CBeaumont 1997, no pet.) (holding State substantially complied with article 37.07, section 3(g) when it gave range of three months in which extraneous offenses took place, rather than specific date); cf. Wheeler v. State, No. 05‑02‑01085‑CR, 20032003 WL 21212829, at *3 (Tex. App.CDallas May 27, 2003, pet. ref=d) (not designated for publication) (finding notice that failed to specify county or state in which alleged offense occurred and failed to name victim inadequate under article 37.07, section 3(g)); James v. State, 47 S.W.3d 710, 714 (Tex. App.CTexarkana 2001, no pet.) (holding State=s notice was defective for failure to state any date, where evidence showed pattern of child abuse stretching over decades). 

Even assuming the notice failed to substantially comply with the statutory requirements and the trial court erred in admitting the evidence, such error was harmless.  Error in admitting evidence with insufficient notice under article 37.07, section 3(g), is non‑constitutional error.  See Roethel v. State, 80 S.W.3d 276, 281 (Tex. App.CAustin 2002, no pet.) (applying harmless error analysis in Rule of Appellate Procedure 44.2(b) to admission of extraneous offense evidence in violation of article 37.07, section 3(g)).  We must disregard any such error that does not affect a substantial right.  Tex. R. App. P. 44.2(b).  A defendant=s substantial rights are affected when the error had a substantial and injurious effect or influence on the jury=s verdict.  King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).  If the error had no or only a slight influence on the verdict, the error is harmless. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

The purpose of the notice requirement in article 37.07 is to prevent unfair surprise and to enable the defendant to prepare to answer the extraneous offense evidence.  Apolinar v. State, 106 S.W.3d 407, 414 (Tex. App.CHouston [1st Dist.] 2003), aff=d, 155 S.W.3d 184 (Tex. Crim. App. 2005); Roethel, 80 S.W.3d at 282.  To determine harm in light of that purpose, we analyze whether and how the notice deficiency affected appellant=s ability to prepare for the evidence.  Roethel, 80 S.W.3d at 281B82.  The appellate court examines the record to determine whether the deficient notice Aresulted from prosecutorial bad faith@ or Aprevented the defendant from preparing for trial,@ the latter inquiry including whether the defendant was surprised by the substance of the evidence and whether the lack of notice affected his ability to prepare cross examination or mitigating evidence.  Id. at 282.

The record contains no indication that the lack of notice surprised appellant or affected his ability to prepare a defense.  Appellant did not move for a continuance, complain about surprise, or inform the court that he was unprepared to address the evidence.  On appeal, appellant does not claim that the lack of notice prevented him from preparing an adequate defense by affecting his ability to cross-examine Lopez or prepare mitigating evidence.  Appellant argues that because the State=s closing argument during the punishment phase urged the jury to increase appellant=s punishment fifteen years for each additional robbery, admission of evidence pertaining to the robbery of Lopez harmed him because A[m]ore robberies translated into more years in prison.@  The jury heard evidence that appellant belonged to a criminal street gang and that over the course of three days, appellant robbed seven citizens at gunpoint and caused bodily injury to three of them.  Appellant was subject to a punishment range of five years probation to life in prison.  The State asked the jury to sentence appellant to a term of sixty years= confinement, or approximately fifteen years per aggravated robbery.  The jury sentenced appellant to forty years= confinement and a $10,000 fine, twenty years less than what the State had requested and well below the maximum allowable.  We do not see how the extraneous offense evidence about which appellant complains influenced the punishment assigned, especially in light of the ample other evidence indicating appellant had engaged in a three day crime spree.

Nothing in the record indicates that the State=s failure to provide notice of its intent to offer evidence that appellant robbed Lopez damaged appellant=s defense during the punishment phase of trial or affected his sentence.  See Apolinar, 106 S.W.3d at 415. Finding no harm from admission of this evidence, the deficient notice did not affect appellant=s substantial rights.  See Roethel, 80 S.W.3d at 283 (holding that lack of notice did not affect appellant=s substantial rights because record contained no evidence that appellant=s ability to present a defense was impaired); Brooks v. State, 76 S.W.3d 426, 436 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (concluding that failure to give notice did not have substantial and injurious effect on sentence where appellant received forty years, State requested sixty years, and maximum was life in prison).  We conclude the trial court did not err in admitting evidence of the extraneous aggravated robbery .  We overrule appellant=s second issue.

We affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed July 24, 2008.

Panel consists of Justices Yates, Guzman, and Brown.

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

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^[1]  Although counsel claimed the court had denied the defense=s challenge to venireperson number eight, the challenge to venireperson number eight was actually raised by the State. 

^[2]  The only authority appellant cites, Gray v. State, 233 S.W.3d 295, 301 (Tex. Crim. App. 2007), addresses the proper harm standard to be applied when a trial court improperly excuses a venireperson.  As noted by appellant, Gray held that the only substantial right a defendant has is that the jurors who serve be qualified.  Id.  Appellant has not argued that the trial court=s alleged error deprived him of a jury composed of qualified individuals.  This case is not on point and is therefore noncontrolling.  

^[3]  Article 37.07, section 3(g), of the Texas Code of Criminal Procedure states:

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 . . . . The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice. 

Tex. Code Crim. Proc. Ann. art 37.07, _ 3(g).