*1 immedi- under the defendant was pulled that the testified that he Appellant dent. passion. of sudden gun pulling because it was ate influence out his get it out of and he wanted to down may there be some Finally, while thought that he way. He also testified Appellant acted in this case evidence Jeremy scare sight gun of the would self-defense, provocation by issue of in pull that he did not intend to and raised, “provok so a was not Appellant in- explanations Both of these trigger. giv was not difficulty” instruction ing the and neither is shooting volve an accidental case. not warranted this en and was high level of response of a to a indicative “provoking Appellant’s discussion by Ap- The actions taken terror or fear. apply provoca not to does difficult/’ are deliberate pellant explanations in both passion. of sudden As in the context tion they are not forethought; done with and to our result, applicable is not a the issue Al- responses provocation. emotional Therefore, Ap case. determination this during the though an accident defense is over ground for review pellant’s second a preclude trial does guilt phase of the not ruled. punishment, instruction at sudden-passion some evidence to indicate
there must be Conclusion VI. the influ- acted under if that evi- passion, ence of sudden even improperly not appeals of did The court contrary is to other evidence dence a sudden- that refuted focus on evidence argues only that “evi- Appellant case. instruction; simply did not find passion supporting passion dence a sudden instruc- charge. such a any support independent tion in this case can be found not Therefore, did err the court to, of, own and in addition Petitioner’s judgment of the affirming However, testimony.” Appellant fails court. is, we, like indicate what this evidence is of the court of The decision appeals, are unable to find affirmed. result, such evidence the record. As in affirm-
the court of was correct deny a ing the trial court’s decision to sudden-passion instruction. ground for review
Appellant’s second provocation by whether evidence asks precludes sudden-passion the decedent punishment phase at the charge appears to be Appellant murder trial. McDONALD, Appellant Robert Charles of “sud- confused. Part of the definition is caused passion” passion is that the den by the arising provocation out of Texas. STATE Therefore, killed. individual No. PD-1943-04. not does by the decedent provocation sudden-passion charge— preclude of Texas. of Criminal is provocation by the decedent evidence of 23, 2005. Nov. charge. It sudden-passion for a be- necessary, but not alone sufficient is
cause, above, there are addi- as we stated to show tional factors that are *3 Houston, Wentz, Appellant.
Kurt B. for Smith, Atty., Hous- Kelly Ann District Austin, ton, Paul, Atty., Matthew for State.
OPINION
PRICE, J., opinion delivered KELLER, P.J., Court, in which WOMACK, JOHNSON, MEYERS, COCHRAN, HOLCOMB, KEASLER, JJ., joined. indecency trial for
At the child, mis- with admitted over the conduct was notice as objection that he did not receive by Texas Rule of Evidence appeal, the Fourteenth On held that notice was re- because to admit the evidence quired transaction as the arose from the same appellant was conduct with which appel- charged. granted review the required be- that notice was lant’s claim arise uncharged conduct did not cause the hold that the same transaction. We from because erred was uncharged conduct because the trial was not introduced at However, the trial same transaction. not result discretion did court’s abuse of error, appel- affirm the and we harmful lant’s conviction. History
I. younger Facts and Procedural cousin’s underwear and down to reveal her “bottom.” The appel- with inde- lant also had cousin straddle cency allegation with a child. The stems her, leg while he rocked touched her from contact the had with the breast, and asked the cousin to touch his complainant, ten-year-old girl, while she “private area.” staying grandmother’s at her house in Houston, Texas. The evidence at against During the trial showed that the had been intro- indecency complainant, with the grand- duced and her sought to appel- introduce evidence of the previous mother on a occasion complainant’s youn- lant’s conduct with the *4 complainant’s ap- uncle. At that the ger appellant’s request, cousin. At the the pellant priest held himself out to be a and provided of its intent to intro- McDonald,” al- introduced as “Father duce certain acts of misconduct though being there is no record of his cousin, involving namely the the similar act ordained within the state of Texas. touching of the cousin’s breast. Despite appellant’s timely request, the offense, day the appellant
On the the notify appellant did not the that it would presented during morning himself the appellant pulling introduce evidence of the grandmother’s apartment the unan- appel- the cousin’s down. Over the nounced and adorned in clerical attire. He objection lant’s no there was notice of by complainant’s grand- was admitted the evidence, the intent to use this the State’s mother, living who sat the room with testimony. trial court the The admitted appellant and transacting the discussed appellant indecency with was convicted from a catalog. During mail-order the child, pled true to enhancements con- visit, appellant repeatedly asked the convictions, cerning prior and was sen- and, lap, to sit on once complainant his she imprisonment. tenced to life did, legs he made her straddle his while he area,” leg “private moved his under her conviction for appellant appealed The his by held her the waist when she tried to child, indecency claiming that the with lap, leave his and kissed her breast. The in admitting trial court erred the evidence appel- also that the testified had failed to because the State lant asked to see under her dress and tried required by notice as Texas Rule of Evi- conduct, to look under her dress. For this dence The Fourteenth Court of appellant charged indecency with held that there was no error with a child. admitting the trial court day, arose complainant’s Later the same without notice because the evidence transaction, making it younger female cousin arrived at from the same ex- empt requirement of apartment attending after summer school. from the notice 404(b).1 held, in played appeals and also The sister cousin 404(b) alternative, requires only game “dog,” called which involved floor, on of the intent to crawling children around reasonable notice conformity un- barking, acting dogs. like The com- introduce non-character that, with plainant playing game was not misconduct since cousin, appellant authority her sister and but she was introduced no to define unreasonable, pull room and her the State’s notice as he had she saw (Tex.App.-Houston [14th Dist.] 1. McDonald v. as his transaction were afforded a basis for same of eri'or that point
no complainant.3 toward actions relief.2 for this Court asserts appellant petitioned Finally; The review, claiming that it dismissed discretionary erred when court finding that he premise erred under the complaint his require notice defining introduced did not failed to cite had transaction it arose from the same a ratio- because notice or reasonable standard for improvi- the court of and also that the State’s notice showing how nale even point of error dently dismissed involving the cousin was the other offenses authority and a factual though provided he unspecified notice of not reasonable his conclusion. rationale for that he points out offenses. The proposition law for the cited case petition for granted uncharged.miscon- timely objection, upon discretionary review. had no notice of which duct Arguments Parties’ II. at trial. admitted not have been should Further, why the admission he discussed argues that the damag- misconduct was complain- involving misconduct sexual *5 court’s decision why the trial ing should not have ant’s cousin at later time disagree- the zone of reasonable not within required notice as admitted without been ment. 404(b) by ap- and that the court of Rule conduct did
peals finding erred in that this argues that the The State notice because it arose from require complainant’s pulling appellant The as- appellant the same transaction. asking her pants down cousin’s that, although he asked for notice of serts the notice re- exempt him is from touch misconduct, provided 404(b) because it arose of Rule quirement notice of some of the acts toward in- as the events in the same transaction cousin, appellant touching her such as support this complainant. To volving the breast, its provide but did not notice of to the fact points position, State appel- intent to introduce evidence of the mo- were and her cousin pants. lant down the cousin’s pulling day, during appel- the same lested on grandmother’s visit to their Further, lant’s same appellant claims period. a short time apartment, and within without notice was not act admitted language plain that the com- The State contends transaction because it was the same 404(b) facts as categorizes these a far of Rule day later in the and was of mitted transaction, thereby arising in the same nature than those for which more serious The notice for admission. requiring no support was on trial. To his appellant never appellant concurring also notes appellant cites the position, admissibility of the evi- objected to the which appeals, from the court of opinion rea- dence, he had not received only that majority appli- misapplied said that the 404(b). Fi- by as on the sonable notice erroneously relied cable law and location, argues providing nally, the State and sub- proximity close intro- its intent to with notice of appel- ject to determine that matter contact with regarding cousin duce evidence complainant’s actions toward lant’s J., (Frost, McDonald, Id. at 602. concurring). cousin addition to a tape detailing video notice of its intent to introduce issue, the uncharged misconduct at there evidence that pulled the prevent sufficient notice to surprise pants cousin’s down because this act was apprise and to of the offenses part of the same appel- transaction as the the State intended to at trial introduce kissing complainant’s lant breast and involving cousin. having leg. her straddle
III. Analysis Law and In determining whether a trial evidence, admitting court erred in Properly A. Point Presented of Error standard for review is abuse of discretion.5 held that the A trial court abuses its discretion when its appellant provided no or reason clearly decision wrong is so as to lie out ing to show how the notice he received side zone within which reasonable failed to constitute reasonable notice of persons might disagree.6 the State’s intent to offer mis conduct. disagree. The In Buchanan v. we noted that properly objected at trial to the lack of presence “the mere report of an offense reasonable notice of the State’s intent to indicating the State’s awareness of the ex- introduce offenses as istence of such evidence does not indicate 404(b), namely Rule pulled that he an ‘intent to introduce’ such evidence in its down the cousin’s and asked her to Hayden case in chief.”7 In touch him. properly also modified this rule somewhat and said appeal by providing asserted this error on circumstances, under some when delivered objection a record that identified his shortly request, after a defendant’s wit- law, lack by identifying of notice and *6 case uncharged ness statements that describe State, that, namely v. Buchanan to assert can misconduct constitute reasonable no- upon a request defendant’s for notice of 404(b).8 tice under Rule 404(b), uncharged misconduct under Rule Hayden, In sometime after the defen- obligated provide State is to reason requested uncharged dant notice of able notice of that conduct.4 mis- Accordingly, conduct, provided presented we hold that the has State witness list point of error that affords a basis for and witness statements.9 When the State relief, uncharged and we will consider whether he had offered evidence of the miscon- trial, required by during reasonable notice as duct the defendant did not claim dispute the State’s that he had actual Uncharged B. Misconduct notice of misconduct through The court of that trial the witness statements.10 We held circumstances, court did not its in of those light abuse discretion admit- held ting the uncharged misconduct. It con- we could not conclude that the trial court that cluded the State was not to its abused discretion. (Tex.Crim.App.1991). (Tex.Crim.App.2001). 4. 8. 66 S.W.3d 272 5. Mozon 9. Id. at 270. (Tex.Crim.App. Id. 272. Montgomery (Tex.Crim.App.1991) (op. reh'g)). on 911 S.W.2d at15. that evi held
The record
this case reflects that the
toward
appellant’s
informed the
several
dence of the
conduct
sepa-
younger
acts of
misconduct
four
arose
cousin
responses
appellant’s request
rate
to
there
from the same transaction and was
notably,
404(b)
for notice. Most
State said fore
under Rule
without
admissible
it intended
introduce
that
that
to
evidence
by the
In its
notice
State.
reasonable
touched the cousin’s breast.
appellant’s life sen
affirming
decision
In none of these documents did the State
tence,
that be
held
inform the
intent to offer
its
“closely
cause the
related
evidence
pulled
that he had
cousin’s
evidence
time, location,
subject
matter with
pants down.
offense,
it was within the
court’s
that it was
discretion
conclude
trial,
During the
the State
claimed
in the
transaction’
‘arising
same
pants
had actual notice of the
under
for which notice was
incident because the State had allowed the
404(b).”12
[R]ule
on
videotape
counsel
view
alleged
that the cousin
about
which
told
404(b) requires
Rule
incident.
counsel said
notice,
timely
upon
defendant’s
videotape,
that he had viewed the
but
request,
intent to
of its
introduce
there was no
inci-
mention
crimes, wrongs, or
An ex
of other
acts.
dent.11
ception
requirement
is when
to the
from the
transact
the evidence arises
same
This
distinguishable
case is
from
404(b), however,
ion.13
Rule
same
Under
First,
Hayden on two separate bases.
contextual evidence is admissi
transaction
purported
State submitted documents that
necessary
“only
ble
extent
it is
intent
to consist
its notice of
to offer
of
jury’s understanding
to the'
appel
acts
misconduct. This
“only
fense.”
It is admissible
when
rely upon
lant was
entitled to
little or
with
offense would make
no sense
notices and to
that these
assume
acts were
out also
transaction
bringing
same
ones
State intended to
*7
is, it is
when
evidence.”15 That
admissible
Second,
appellant disputed
offer.
con
several offenses are “so intermixed or
State’s claim that he had
actual
received
single,
nected
crim
as to form
indivisible
notice of the
incident. Because of
transaction,
narrating
inal
such
two
these
circumstances we cannot con
one,
describing
it is
impracticable
clude that
we
avoid
exception
outlined
Hayden applies to the facts
this case.
the other.”16
577,
Eng
appear
(Tex.Crim.App.1996) (quoting
11. The video does not
in the index of
584
State,
(Tex.Crim.
exhibits offered at trial and is
v.
land
887 S.W.2d
There
indication in
record.
is no
the record
App.1994)).
appellant’s
whether the
counsel
viewed
filing
request
video before or after
25; Pondexter,
Wyatt,
at
15.
23 S.W.3d
notice.
(quoting England,
S.W.2d
887 S.W.2d
at 584
at
McDonald,
HERVEY, J., concurred the result. and, record,2 more perhaps of the entire COCHRAN, J., concurring a filed op- an importantly, parties to opinion. harm. portunity fully brief issue of to COCHRAN, J., concurring filed However, Su- like the United States opinion. Court, we do the inherent preme have to eval- join authority I record majority opinion.
I add these to review In Unit- only is why comments to elaborate on uate whether error harmless.3 See, judgment con- e.g., of reverse of must Saenz J., (Clinton, (Tex.Crim.App.1992) concurring) punishment court deter- viction or unless the (arguing beyond we are a "[b]ecause discretion- mines a reasonable doubt not, context, court, ary review and in this 'the conviction or error did not contribute court,' blush, appellate Tex.R.App. suggest punishment”) might, out in former [set at first 81(b)(2)], we P. should not resolve the issue of the authori- a court has impres- of harmfulness of first ty as matter a case for constitution- reverse harmful J., sion”); (Baird, error, but see id. at 30-32 obviously concur- true. This al is not ring dissenting) (arguing that "remand- may always penalty Court reverse a death ing analysis illusory (or for a an cases harm is for harmful constitutional conviction display respect meaningless squan- error, of and a non-constitutional) may and this court dering judicial resources that our over- always appeals’s a court de- also review appellate system burdened court ill af- can con- the harmfulness of either termination of ford”). What error. stitutional or non-constitutional proper explanation appear would to be the e.g., Gipson 2. See specific language 44.2 for use in Rule of this J., (Benavides, (Tex.Crim.App.1992) concerning appellate rule is fact that concurring) (arguing regard that "a due immediately after reversible error comes appellate of our intermediate dealing judgments the courts of rule with strongly at least in favor” of courts militates 43), (Rule immediately appeal before exercising assessing this Court restraint in dealing opinions and several other rules with harmfulness error before intermediate (Rules the courts of orders issued so opportunity has had to do because court an 44-50). just possible not to review a matter "[i]t is 78.1, this Court the authori- Under Rule has yet viewed in first which has been ty judgment the lower court’s "affirm place”). (implying part" whole that this or in *9 a authority judgment affirm Although explicit language has in Rule (“If disagree 44.2(a) if we with its court even appellate record in a crimi- error, analysis the error but conclude that that is nal case reveals constitutional error review, harmless); judgment "reverse court’s subject to harmless error the court ed States v. Hasting,4 Supreme clearly demonstrates that the error is obvi- noted because “this Court has before harmful ously either or harmless.7 In it the same record the Appeals Court of instances, those money, and ef- reviewed, we are in precisely position expended fort on a remand are not worth of that court in addressing the issue of the candle of comity litiga- and continued harmless error.”5 tion. primary arguments in favor of hav- This is one such case. Here the error is ing appellate court which found error Therefore, clearly join harmless. I in the case also decide if that error is majority expend ju- declining scarce
harmful “keep[ing] are to avoid this cause by dicial resources remanding particu- this orbit, heavenly appellate delaying] lar case to the court of appeals to re- finality judgment, further ex- reaching review the record before a fore- judicial hausting] resources [and] gone conclusion. money, and insuring], in all likeli- hood that we will again once be able to
open up the same appellate record and right find ourselves today.”6 where we are While powerful these are arguments
against bouncing a criminal case back and courts, we, forth appellate between like the Court, Supreme rarely exercise our au- thority to make an initial harmless error review.
But there are times in which we should exercise that authority: when the record 408, judgment in whole or in and render the Woodfox P.J., that the lower court (Onion, should have rendered” (Tex.Crim.App.1987) dissenting). (implying authority that this court has to find error in the decision of the court of See, 738, e.g., Gipson judgment and reverse the because that error (Tex.Crim.App.1992) (finding error harmful); or "reverse the lower court’s harmful without remand because trial court judgment and remand the case for further specifically upon erroneously relied admitted proceedings” (implying that this Court has confession), (Benavides, J., id. at 743-44 con authority by to find error in the decision curring) (arguing ques "[d]eciding appeals, judgment reverse its tion of harm in most cases where the Court remand the case to that court for harm yet produces has not done so analysis). potentially result which is at least different 499, 510, 4. 461 U.S. 103 S.Ct. pro from the result which would have been (1983) (stating, "Although L.Ed.2d 96 we are Appeal duced had the Court of instead re to review records to evaluate itself,” question agreeing solved the but claim, sparingly, harmless-error do so present case "it seems to me that the so”). plainly have the to do conclusively harm is established on the rec judge’s objec ord the trial admission that 1974;
5. Id. at 510 n. 103 S.Ct. see also tionable evidence was used to convict .... Lane, 438, 450, United States v. 474 U.S. potential there is no result reached (1986) (when S.Ct. 88 L.Ed.2d error Appeals, in the Court of were it to review the clearly "overwhelming is harmless because of matter, possibly could be different than the evidence,” Supreme Court would rec- review here.”). by majority result reached ord to evaluate harmless-error claim without remanding appeals). case to court of