Opinion
No. 01-02-01319-CR
Opinion issued January 15, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 228th District Court Harris County, Texas, Trial Court Cause No. 924,749.
Panel consists of Chief Justice RADACK and Justices JENNINGS and HIGLEY.
MEMORANDUM OPINION
A jury found appellant, Ismael Lazalde, guilty of aggravated sexual assault of a child and assessed punishment at confinement for 12 years. The jury also imposed a $5,000 fine. In his sole point of error, appellant contends that the trial court abused its discretion by admitting evidence of extraneous offenses. We affirm.
Facts Procedural History
A. The Offense Sometime around December of 1999, appellant sexually assaulted L.L., complainant, by placing his fingers inside complainant's female sexual organ. Appellant is complainant's father. Complainant was between six and seven years old at the time of the assault.B. Request for Notice
A jury trial began on October 22, 2002 to determine appellant's guilt. Prior to trial, the trial court granted "Defendant Lazalde's Request for Notice Under Rule 404(b), Texas Rules of Evidence" and ordered the State to notify appellant of evidence of extraneous crimes, wrongs or acts that the State intended to introduce under Texas Rule of Evidence 404(b). The State gave no notice of an intent to introduce evidence under Rule 404(b). Appellant did not file a request for notice under any other authority.C. Complainant's Testimony
During her testimony, complainant described, in detail, the instance of sexual abuse that occurred in December of 1999. When the State began to solicit testimony from complainant concerning subsequent instances of abuse, appellant made the following objection:[Defense Counsel]: Your Honor, I'm going to object to the line of questioning. May we approach?
[The court]: Yes, sir.
(bench conference held and recorded)
[Defense Counsel]: Your Honor, Judge Poe had granted the motion in limine on my part and on extraneous offenses. Here we're talking about different time, different places and extraneous offenses, and I have to object on those grounds.
[The court]: I understand your objection. It's overruled.After the trial court overruled appellant's objection, complainant testified about two subsequent instances of sexual abuse committed by appellant.
At trial, the Hon. Robert Burdette sat as a visiting judge for the Hon. Ted Poe.
Extraneous Acts
In his sole point of error, appellant contends that the trial court's order granting appellant's request for notice under Texas Rule of Evidence 404(b) required the State to "give defense counsel notice of any incident after the first incident as an extraneous offense." The State gave no notice of an intent to introduce evidence under Rule 404(b). Therefore, appellant concludes that the trial court abused its discretion in allowing complainant to testify about three instances of abuse rather than only the primary offense occurring in December of 1999. Texas Rule of Evidence 404(b) is the authority generally applicable to issues concerning the admission of evidence of extraneous crimes, wrongs or acts committed by a criminal defendant. However, in prosecutions for sexual assault of a child, Rule 404(b) is superseded by article 38.37 of the Texas Code of Criminal Procedure. Tex. Code. Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2004); Hitt v. State, 53 S.W.3d 697, 705 (Tex. App.-Austin 2001, pet. ref'd). Article 38.37 provides, in pertinent part, as follows:Sec. 2. Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:
(1)the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the defendant and the child.Sec. 3. On timely request by the defendant, the state shall give the defendant notice of the state's intent to introduce in the case in chief evidence described by Section 2 in the same manner as the state is required to give notice under Rule 404(b), Texas Rules of Criminal Evidence. Tex. Code. Crim. Proc. Ann. art. 38.37. To be entitled to notice pursuant to article 38.37, a defendant must specifically request notice under the article. Id. A request for notice under Rule 404(b) does not constitute a request for notice under article 38.37. Hitt, 53 S.W.3d at 705-06. Thus, the State need not provide notice of its intent to present evidence admissible under article 38.37, when a defendant merely makes a request for notice under Rule 404(b). See id. In the instant case, complainant's testimony concerning the subsequent acts of sexual abuse was admissible under article 38.37. Appellant failed to request notice of the State's intent to introduce evidence admissible under article 38.37, and appellant's request for notice under Rule 404(b) was insufficient to require the State to provide notice of the testimony. We hold that the trial court did not abuse its discretion in allowing complainant to testify about the subsequent acts of abuse, notwithstanding the State's failure to notify appellant of its intent to present the testimony under article 38.37. We overrule appellant's sole point of error.