Carlos Medrano v. State ( 2020 )

AFFIRMED as MODIFIED and Opinion Filed April 21, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01364-CR
CARLOS MEDRANO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F-1240354-I
MEMORANDUM OPINION
Before Justices Bridges, Whitehill, and Nowell, III
Opinion by Justice Whitehill
Appellant pled nolo contendere to indecency with a child by sexual contact
and waived his right to a jury trial. After hearing evidence, the trial court found him
guilty and placed him on seven years deferred adjudication community supervision
and required that he serve 120 days in jail as a condition to probation.
In a single issue, appellant argues that the trial court erred by admitting
extraneous offense evidence because the State did not provide adequate notice.
In two cross-issues, the State asks us to modify the deferred adjudication order
to reflect that the victim was ten years old when the offense occurred and appellant
pled “nolo contendere” rather than “guilty.”
We conclude the trial court did not abuse its discretion by admitting the
extraneous offense evidence because, despite appellant’s TEX. R. EVID. 404(b)
objection the evidence was admissible under TEX. CODE CRIM. PROC. art. 38.37.
We further conclude that the record supports the State’s requested
modifications.
Accordingly, we modify the court’s deferred adjudication order, and as
modified, affirm.
I. BACKGROUND
In 2012, JD and her parents attended a New Year’s Eve party at appellant’s
home. While at the party, appellant attempted to penetrate JD’s vagina with his
fingers. JD was ten years old at the time.
Appellant pled nolo contendere to indecency with a child by sexual contact
and waived his right to a jury trial. After hearing evidence, including JD’s testimony,
the trial court found appellant guilty and placed him on seven years deferred
adjudication community supervision. The court required that appellant serve 120
days in jail as a condition to probation.
–2–
II. ANALYSIS
A. Did an insufficient notice render the extraneous evidence inadmissible?
Appellant’s sole issue argues that the State’s extraneous offense notice was
inadequate and thus the trial court erred by overruling his objection to that evidence.
The State’s notice of extraneous offenses advised that the State might
introduce evidence that “[t]he defendant, as a continuing course of conduct,
contacted the genitals of the complainant with his hand[.]” In a subsequent pretrial
motion, appellant’s counsel requested notice of the State’s intent to use extraneous
offenses pursuant to TEX. R. EVID. 404(b) and TEX. CODE CRIM. PROC. ANN. 37.07.1
After JD testified about the 2012 incident, the State asked whether appellant
had ever tried to touch her before that time. Appellant’s counsel objected, “Judge,
I’m gonna object unless we have a 404(b) notice. When the State replied that notice
had been given, appellant’s counsel replied, “It would be my position notice is
insufficient. It alleges a continuous course of conduct.” The objection was
overruled.
We review the trial court’s decision to admit or exclude evidence, as well as
its decision as to whether the probative value of evidence was substantially
outweighed by the danger of unfair prejudice, under an abuse of discretion standard.
1
Article 37.07(g) provides that, “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.” See TEX. CODE CRIM. PROC. art. 37.07 §3(g).
–3–
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court does
not abuse its discretion unless its determination lies outside the zone of reasonable
disagreement. Id.
Under rule 404(b), evidence of other crimes, wrongs, or bad acts is
inadmissible if it is offered to prove the character of a person in order to show action
in conformity therewith, but the evidence may be admissible for other purposes, such
as proof of motive, opportunity, intent, absence of mistake, or accident, or to rebut
a defensive theory. See TEX. R. EVID. 404(b).
The State is required to give notice of its intent to introduce such evidence.
TEX. R. EVID. 404(b), and the notice must be “reasonable.” Hayden v. State, 66
S.W.3d 269, 272 (Tex. Crim. App. 2001). The notice requirement’s purpose is to
prevent surprise. Id. Whether a notice is “reasonable” turns on the facts and
circumstances of each case. Scott v. State, 57 S.W.3d 476, 480 (Tex. App.—Waco
2001, pet. ref’d).
In this case, however, we need not consider whether the evidence was
admissible under rule 404(b) because the evidence was admissible under article
38.37. See TEX. CODE CRIM. PROC. art. 38.37.
Article 38.37 allows the State to introduce evidence of any other crimes,
wrongs, or acts committed by the defendant against the victim of the offense that he
is on trial for in a prosecution for continuous sexual abuse of a young child for its
bearing on any relevant matters, including: (i) the defendant’s and victim’s state of
–4–
mind and (ii) the previous relationship between them. See TEX. CODE CRIM. PROC.
art. 38.37§ 1(b); see also Dounley v. State, No. 05-19-00036-CR, 2020 WL 415930,
at *1 (Tex. App.—Dallas Jan. 27, 2020, no pet. h.) (mem. op., not designated for
publication). It also allows the State to introduce evidence of a separate offense for
relevant matters, including defendant’s character and acts performed in conformity
with his character.
Before the State may introduce 38.37 evidence, it must provide notice to the
defendant at least thirty days before trial. See TEX. CODE CRIM. PROC. art 38.37 § 3;
see also Stubblefield v. State, No. 05-15-01124-CR, 2017 WL 343595, at *1 (Tex.
App.—Dallas Jan. 18, 2017, pet. ref'd) (mem. op., not designated for publication).
Under Article 38.37 § 2, notwithstanding Texas Rules of Evidence 404 and
405, and subject to Article 38.37 § 2-a, evidence that a defendant has committed
certain offenses against a child may be admitted in the trial of a defendant for
indecency with a child “for any bearing the evidence has on relevant matters,
including the character of the defendant and acts performed in conformity with the
character of the defendant.” TEX. CODE CRIM. PROC. art. 38.37 §2(b); see Lara v.
State, 513 S.W.3d 135, 141 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
Article 38.37 supersedes the application of Rule 404(b), making extraneous offense
evidence admissible that Rule 404(b) would preclude. Hitt v. State, 53 S.W.3d 697,
705 (Tex. App.—Austin 2001, pet. ref'd); see Lara, 513 S.W.3d at 141.
–5–
Appellant did not request notice under article 38.37, nor did he object on this
ground. A request for notice under rule 404(b) and article 37.07 is not sufficient to
invoke the notice requirements of article 38.37. .Avery v. State, No. 05-02-00735-
CR, 2004 WL 78042, at *3 (Tex. App.—Dallas Jan. 20, 2004 pet. ref’d) (mem. op.,
not designated for publication). And as we have noted, in cases in which it applies,
article 38.37 supersedes Rule of Evidence 404. See Martines v. State, 371 S.W.3d
232, 246 (Tex. App.—Houston [1st Dist.] 2011, no pet).
Consequently, the evidence was admissible under article 38.37 regardless of
the adequacy of the State’s rule 404(b) notice. Avery 2004 WL 78042, at *3; cf.
Muniz–Luna v. State, No. 03–09–00266–CR, 2010 WL 3810820, at *5 (Tex. App.–
Austin Sept. 30, 2010, pet. ref’d) (mem. op., not designated for publication) (holding
that appellant failed to preserve request for limiting instruction when evidence was
admissible under article 38.37 and counsel had only objected and requested
instruction under rule 404(b)); see also Hitt v. State, 53 S.W.3d 697, 704–705 (Tex.
App.—Austin 2001, pet. ref’d).
Appellant’s sole issue is resolved against him.
B. Should the Court’s order be modified?
The deferred adjudication order states that appellant pled “not guilty,” and
includes the notation “n/a” in the space provided for the victim’s age. But the record
reflects that appellant pled nolo contendere and JD was ten years old when the
offense occurred.
–6–
We are authorized to reform a judgment to make the record speak the truth
when we have the necessary information to do so. Bigley v. State, 865 S.W.2d 26,
27 (Tex. Crim. App. 1993). We therefore sustain the State’s first and second issues
and modify the court’s order accordingly.
III. CONCLUSION
We sustain the State’s cross-issues and modify the court’s order to reflect that
appellant pled nolo contendere and the victim was ten years old when the offense
occurred. As modified, we affirm the trial court’s order.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
181364F.U05
–7–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CARLOS MEDRANO, Appellant On Appeal from the Criminal District
Court No. 2, Dallas County, Texas
No. 05-18-01364-CR V. Trial Court Cause No. F-1240354-I.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Whitehill. Justices Bridges and
Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED to reflect that the victim was ten years old when the offense occurred
and appellant pled “nolo contendere” rather than “guilty.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered April 21, 2020
–8–