Buchanan v. State

Appeal perfected a criminal case HUTSON-DUNN, Before ANDELL and giving timely appeal; except, it is DUGGAN, JJ. give unnecessary appeal penalty appeal

death cases. Notice writing shall be filed with OPINION clerk of trial court. notice shall Such DUGGAN, Justice. it desire shows the sufficient if appeal judgment from the Buchanan, appellant, Carl defendant appealable order.... other 562,943 aggra- indicted in cause number Appellant pled guilty vated assault. to the Tex.R.App.P. 40(b)(1) (emphasis offense, adjudica- trial court deferred this Court must resolve tion. was indicted The issue aggravated appellant’s motion for statement cause number sexual whether desire to aggravated kidnapping. gave facts sufficient notice of his assault and guilt phase presented it In Miles v. dence at the appeal. We hold that does.1 (Tex.Crim. was re- 279 n. 1. indicates that Ms. Williams home, presumably a App.1989), found that a 'written leased at her mother’s the court place. appeal bond showed the desire of the defen- safe to consti- dant to and was sufficient However, appeal.

tute the issue of safe release is litigated punishment phase properly at the transcript are A statement of facts and a trial, it is a factor that miti the because ap- usually necessary parts of the record on State, v. 851 gates punishment. Williams peal. appellant’s It is the burden to see that 282, (Tex.Crim.App.1993); 286 Rob S.W.2d adequate presented appel- an record is (Tex. 795, inson v. 739 S.W.2d Tex.R.App.P. 50(d). late court for review. Williams, court held Crim.App.1987). In the By filing a to the statement of motion obtain that, during phase of the punishment the ap- transcript, believe that facts and the we trial, appellant to the initial burden is on comply attempting was to with this complainant produce evidence that the was requirement, indicating his intent thus place. in a safe The burden then released appeal. the fact finder shifts to the State to convince appel- we have determined that Because appellant If fails place that the was unsafe. adequate, lant’s notice of the proof, the to meet his threshold burden appeals motion to the as un- dismiss punished first-degree a accused will be as timely filed is overruled. Williams, at 286. felon. 851 S.W.2d error, appellant point In his first case, introduced evidence appellant this contends that the evidence was insufficient guilt phase the of the trial that indicated at first-degree felony sustain a conviction for However, no he introduced safe release. 598,- aggravated kidnapping in cause number during on the issue the evidence whatsoever The evidence adduced at shows 811. trial, phase nor was the punishment of the May appellant confronted that on guilt phase reoffered adduced at the evidence Williams, Dolly complainant, the at her flow the punishment phase. hold that at the We Houston, shop that she er and demanded during pun- presented must be evidence to him. she went outside and talk When holding required phase. a is ishment Such car, grabbed appellant beside her stood example, practical reasons. For for several pushed her inside the car. Ms. Williams guarantee will be there is no attempts escape, to no avail. made several by judge presides who sentenced the same cemetery Appellant to a where Ms. drove phase trial. Unless guilt over the of the buried, and made her parents were Williams’ presented at the evidence of safe release is open grave. He then edge stand on the of an sentencing judge will punishment phase, the “Bitch, said, they put your that’s where mitigating evi- not have the benefit such a mother and father and that’s where bitch Also, possibility is the dence. there Appellant at.” then like needs to be pass the trial several months will between Appellant times. raped Ms. Williams three fact, sentencing. is mother’s finally drove Ms. Williams to her Appellant case. was found situation house, again he released her after where he was not guilty on October but threatening kill her. Because until December sentenced that, passage of time and the number of under Tex.Penal Appellant 20.04(b) (Vernon courts, 1989), by it would can- cases heard our criminal § he Code Ann. judges expect district degree felony unreasonable to our convicted of a first not be guilt phase recall minute details from Ms. a safe because he released Williams undisputed evi- of the trial. place. agree that appealing from a set forth in Moreno We note that is court, (Tex.App. not no Dist.] conviction after a trial before [1st — Houston guilty plea. more strin- from a applicable. pet.), not are appeal, gent requirements perfecting as for discovery re- find that failed to defendant file a motion Because we any questing request If for notice is punishment at the notice. introduce evidence motion, release, discovery by it must be ruled phase of the trial on the issue of safe made prior to trial. Id. at 39. properly punished first-degree the trial court he was that it would be the court indicated felon. to file a practice defendant better point Appellant’s first overruled. “Request for No- separate document entitled error, point his second Offenses.” of Intent to Offer Extraneous tice trial court admit contends erred specific request Id. at 38 n. 3. Such ting evidence of an extraneous offense for byon trial court notice need not be acted requisite giv not which the notice had been obligated comply. Id. before the State 404(b) provides: en. Rule at 38. crimes, wrongs, of other or acts Evidence case, appellant In not file a discov- did prove is not admissible to the character of motion; ery specific request a he filed person a acted in order show that he ruling requires notice. a motion a While however, conformity may, therewith. It court, request specific from the a for notice purposes, admissible for other such as Espinosa, does not. 853 S.W.2d at 39—40 intent, motive, proof opportunity, prepa- (Baird, J., concurring). appellant Because ration, plan, knowledge, identity, or ab- trial, request filed a for notice well before accident, provided, sence of mistake or ruling required and no from the court is accused, upon timely request by the rea- request, such we find that has sonable notice is advance of timely requested notice of the intent State’s intent to introduce in the State’s case in 404(b) to use rule materials. arising such evidence other than that chief from the same transaction. gave appel it The State also that 404(b) (emphasis adequate by providing TexR.CRIM.Evid. lant him with a copy report of the offense that referred trial, At the State introduced evidence that previous incident between days two charged before the date of the support argument, Ms. Williams. of this offenses, appellant drove to Ms. Williams’ the State cites the decision of the intermedi residence and told her that he wanted to talk State, appellate Espinosa ate court in v. 828 with her. Ms. Williams told that (Tex.App [14th S.W.2d him, got she did not want to talk to but she . —Houston 1991), (Tex.Crim. aff'd, Dist.] 853 S.W.2d 36 ear argument. Appellant his to avoid an App.1993). Espinosa, appellate court away. then backed the car Ms. Williams told that held the State had fulfilled its notice go that she did not want to with requirement open policy because its file had Appellant him. backing continued the car provided the defendant with actual knowl away replied, you “I don’t care what file, edge including of all the evidence its bothering want to do. I’m not with that the extraneous offense such evidence. Given Then, anymore.” while car was still knowledge, provided the defendant was suffi moving, opened Ms. Williams the ear door prepare cient notice to a defense to counter jumped out. Espinosa such evidence. The decision was offered, testimony ap When this subsequently affirmed the Court of Crimi objected and claimed the State had however, Appeals; nal the court never give required by failed to the notice rule reached the issue of sufficient notice. responds by claiming The State appellant’s request untimely requirement agree for notice was the notice ruling by by giving not because he did obtain a fulfilled defendant access to the request trial court on until for notice evidence of extraneous offenses via the day Espinosa policy. Appellant of the trial. had actu- v. 853 State’s files (Tex.Crim.App.1993), knowledge 38-39 S.W.2d al of the extraneous offense evi- court, ways questioned by appel- court indicated that there are two dence. When 404(b). First, request notice under rule lant’s trial counsel admitted that he had seen equal report containing protection The clause al the offense the extraneous leeway legislature considerable offense evidence: lows legislation appear to affect enact you Do have been The Court: believe similarly persons differently. situated Clem totally? able review 957, 962-63, Fashing, ents v. 457 U.S. Honor, Yes, Appellant’s Your I Counsel: (1982); 78 L.Ed.2d 508 S.Ct. pending quite have. This case has been (Tex. 480-81 Clark some time so have reviewed it on several Crim.App.1984). the classification in Unless occasions. the exercise of a fundamental terferes with knowledge Because he had actual class, right places suspect on a burden extraneous evidence contained in the offense will not be set aside on the classification report, appellant offense should have been equal protection grounds rationally if it is prepared against to defend evidence. Clark, legitimate to a interest. related state Appellant surprised was not the introduc- 665 S.W.2d at 480-81. Therefore, we con- tion of such evidence. right to an does not create by giving appellant clude that access infringe suspect class or fundamental evidence, the extraneous offense State ful- right. the issue this Court must 404(a). requirement filled the notice of rule the denial of the decide whether Appellant’s point second of error is over- adjudication in cases is appeal deferred ruled. rationally accomplishment to the of a related legitimate state interest. points In his third and fourth of er ror, appellant his contends that he is denied find that there is a rational basis for right equal protection, guaranteed by to adjudication treating probationers deferred Constitutions, United and Texas States differently probationers. In regular from appeal he is not allowed to the trial because adjudication, finding there is no of deferred adjudicate guilt in court’s decision to cause guilt probation until the is revoked. There- support argu his fore, adjudication probationer if the deferred ment, concurring opinion appellant cites the successfully completes probation, he will his in Olowosuko v. hand, criminal record. On the other have no Judge (Tex.Crim.App.1992), wherein Over- adjudicated guilty regular probationer is expressed street some concern about wheth such, probation. As placed before he is adjudication probationer er a deferred should given adjudication probationers are deferred right appeal to of his have the revocation not afforded to a valuable benefit regular proba probation, given the fact that legislature regular probationers. The could right. such a tioners are rationally chosen to condition the award have relinquishment of a of such a benefit on the The United States Constitution appeal, thereby relieving the case right to require provide any sort does not state appellate courts. load of the Illinois, appellate review. Griffin 585, 590, Appellant’s points 100 L.Ed. 891 fourth U.S. 76 S.Ct. third and (1956). overruled, Similarly, right ap appeal cause num- Texas the are peal statutory, part Ex to the not constitutional. ber as it relates decision (Tex.Crim. adjudicate guilt, Spring, 586 S.W.2d 485-86 is dismissed. 1978). legislature

App. Op.] The has [Panel error, appellant point fifth provide appellate review from not seen fit to considering erred adjudicate guilt in a contends the trial court a decision to deferred when he assessed adjudication a dismissed indictment proceeding. Tex.Code Ceim. (Vernon 598,- 5(b) 42.12, Supp. punishment both causes P.Ann. art. sec. contention, 1994). of this support is not a right Because the following made legislature’s statements right, the decision refers constitutional punishment adju court at the time provide in deferred the trial not to assessed: proceedings is not unconstitutional. dication (the Court) petition, I’ve become convinced sented the dismissal throughout everything I heard in this indicated he did not believe that the State’s have case, open policy regardless file constituted sufficient notice of where it came from —I you argued under rule He that the notice don’t know where it came from —that requirement speaks extremely dangerous person.... of the rule to the intent are an and not the existence of the January I look back to of 1974 when agree. at I clear evidence. Id. The aggravated were as- arrested sexual 404(b) language requires of rule notice of the burglary. sault I know that case was State’s “intent to introduce of oth- [evidence Complainant’s request; dismissed at crimes, wrongs, acts] er or the State’s case so, account; really I can’t that into take chief_” 404(b) (em- Tex.R.CRIM.Evid. but it is some indication of violent some phasis While State’s behavior at that time. policy provide a defendant notice of the we find that did not possession of evidence of other properly preserve point of error for re- crimes, it does not inform the defendant preserve complaint appellate view. To the State intends to introduce that evidence review, party present must to the trial at trial. would hold motion, timely request, objection, court a by allowing trial court erred the State to stating specific grounds ruling for the he introduce evidence of other crimes without desires, specific grounds if appar- are not providing appellant first its intent Tex.R.App.P. 52(a). ent from the context. do so. record shows that never ob- jected unadjudi- to the consideration of the

cated, extraneous offense.

Appellant’s point fifth of error is overruled.

Appellant’s appeal from the decision to

adjudicate guilt 562,943 in cause number points

dismissed. All relating other overruled,

to that cause are judg- ment is affirmed in all respects. other Cause Jay Monday MONDAY Construction d/b/a is affirmed. Company, Appellant,

ANDELL, Justice, dissenting part. COX, Appellee. Rebecca A. I agree majority reasoning with the in the disposition of cause number No. 04-93-00694-CV. disagree reasoning with the Texas, Appeals Court of disposition of cause number San Antonio. would reverse and remand that cause accord- ingly. 31, May majority by giving appel- holds that Rehearing July Denied lant policy, access to its files via an complied the State has with the re-

quirement of Tex.R.CRIM.Evid. I dis-

agree.

In Carrao v. denied,

(Tex.Crim.App.1990), cert. 498 U.S. (1991), S.Ct. L.Ed.2d 1072 initially granted petition

the court for discre

tionary review in order to discuss the re

quirements for sufficient notice under rule petition but then im dismissed

providently granted. Judge Campbell dis-

Case Details

Case Name: Buchanan v. State

Court Name: Court of Appeals of Texas

Date Published: Mar 31, 1994

Citation: 881 S.W.2d 376

Docket Number: 01-93-00209-CR, 01-93-00210-CR

Court Abbreviation: Tex. App.