Sinclair, Thomas Henry, PD-0374-15

Background

Sinclair operated the Wispers nightclub; patron Fernando Ramirez received private dances, disputed a refund, and later was struck with a sjambok and died of blunt force head trauma.
Sinclair was indicted for manslaughter and aggravated assault; jury convicted him of the lesser-included offense of assault and assessed one year in county jail and a fine.
Defense obtained a pretrial court order requiring the State to give reasonable notice of any extraneous-offense evidence under Tex. R. Evid. 404(b).
On the first day of trial (voir dire), the State filed written notice it intended to introduce evidence that Sinclair had previously assaulted people with a sjambok at the club; specific details were disclosed to defense shortly before the testimony.
Defense objected at trial that the 404(b) notice was untimely and prejudicial; the trial court overruled and admitted DJ Jeff Ballew’s testimony about a prior incident.
On appeal the Waco Court of Appeals initially affirmed without analysis; the Texas Court of Criminal Appeals vacated and remanded. On remand the court of appeals again rejected Sinclair’s claim, ruling (1) he failed to preserve error by not requesting a continuance and (2) any error was harmless.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation of complaint about untimely 404(b) notice	Sinclair: a timely objection to lack of reasonable notice preserves the issue; no continuance required.	State: defendant must request a continuance to preserve complaint about surprise from late notice.	Court of Appeals held Sinclair failed to preserve because he did not request a continuance. (Sinclair contests this as legally incorrect.)
Harmless-error standard for late 404(b) notice	Sinclair: if 404(b) evidence is substantively inadmissible, admission is always harmful; if admissible, surprise controls harm.	State/Court: because Sinclair was aware of the prior incident, any late notice did not harm his substantial rights.	Court of Appeals held any error was harmless, noting Sinclair had testified about the incident and produced surveillance photos. Sinclair argues the court ignored Hernandez and record evidence showing actual surprise.
Substantive admissibility under Rule 404(b)	Sinclair: Ballew’s testimony was offered to show character/conformity and thus was substantively inadmissible under Rule 404(b).	State: evidence explained Ballew’s reaction and context of the charged incident (arguing non-character purpose).	Court of Appeals assumed (without full analysis) that admission was not harmful; Sinclair contends the evidence lacked a proper 404(b) purpose and therefore its admission was injurious.
Role of precedent (Lindley/McDonald/Buchanan line)	Sinclair: controlling CCA cases (e.g., Buchanan, McDonald) require only timely objection to preserve; Lindley’s continuance language is limited to discovery/other-surprise contexts.	Court of Appeals relied on appellate decisions requiring a continuance to preserve and cited Lindley line.	Disagreement: Sinclair argues the court misapplied Lindley and that CCA precedent supports preservation by objection alone; the court of appeals nevertheless affirmed.

Key Cases Cited

Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995) (objection to lack of reasonable 404(b) notice can preserve error)
McDonald v. State, 179 S.W.3d 571 (Tex. Crim. App. 2005) (404(b) notice error preserved by objection; continuance may be a factor in harm analysis)
Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005) (harm analysis for late 404(b) notice depends on whether evidence was substantively admissible; inadmissible evidence is always injurious)
Lindley v. State, 635 S.W.2d 541 (Tex. Crim. App. 1982) (language about waiving error by failing to request postponement applies primarily to discovery-order/surprise contexts, not automatically to 404(b) notice disputes)
Martines v. State, 371 S.W.3d 232 (Tex. App.—Houston [1st Dist.] 2011) (court of appeals decision discussing preservation via continuance request)