                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00143-CR


NORMAN LEE OLSON II                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

           FROM THE 97TH DISTRICT COURT OF CLAY COUNTY
                  TRIAL COURT NO. 2013-0036C-CR

                                      ----------

                         MEMORANDUM OPINION 1

                                      ----------

      Appellant Norman Lee Olson II appeals from his conviction for continuous

sexual abuse of a child and life sentence. Because we conclude the trial court

did not abuse its discretion by admitting evidence of an uncharged, extraneous

offense during the trial’s punishment phase, we affirm the trial court’s judgment.




      1
       See Tex. R. App. P. 47.4.
                                I. BACKGROUND

      T. had two children: A. and C. 2 T. married Appellant in June 2011 when A.

was eleven. Beginning in December 2011, Appellant began frequently touching

A.’s breasts and sexual organ. Before touching A., Appellant had a system of

hand signals indicating to A. which of her body parts he wanted to touch. To

ensure A.’s compliance, Appellant would not allow A. to do certain things—watch

a movie, eat a doughnut—until she consented to his request. Appellant’s abuse

continued until January 2013, when A., then thirteen, told T. On May 20, 2013, a

grand jury indicted Appellant for continuous sexual assault of a child. See Tex.

Penal Code Ann. § 21.02 (West Supp. 2014).

      On December 16, 2013, Appellant filed a request for ten days’ notice of the

State’s intent to use any extraneous-offense evidence at guilt-innocence or

punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (West Supp.

2014); Tex. R. Evid. 404(b). The State notified Appellant on March 6, 2014—

twelve days before the start of his trial—that it intended to introduce at

punishment “[Appellant’s] sexual assault of [C.], unindicted.” 3       On March 13,

2014, the State contacted Appellant’s counsel by phone and notified him of its

intention to introduce an unindicted, extraneous offense at punishment—the


      2
       We use aliases to refer to any witnesses who were minors at the time of
the offenses and their families. See Tex. R. App. P. 9.10(a) (providing privacy
protection for sensitive data in criminal cases, including the name of a minor).
      3
       The State ultimately did not proffer C.’s testimony at trial.


                                          2
continuous sexual abuse of D., who was the daughter of Appellant’s former

girlfriend, spanning the period of 1991 to 2001. This was the same day the State

was able to identify D. and determine that she was a credible witness. 4 Counsel

admitted, however, that he received a “case report” from the State on

March 6, 2014, with a pseudonym for D., setting out the extraneous-offense

facts. On March 17, 2014, which was the day before the start of Appellant’s trial,

the State filed a supplemental notice that it intended to use as punishment

evidence the unindicted “sexual assault” of D. by Appellant, which occurred over

a ten-year period (1991–2001) in Clay County. 5        On the first day of trial—

March 18, 2014—the trial court denied Appellant’s oral motion for continuance “to

be able to investigate [D.] and also to investigate the results of the investigation

back in 2001.”

      On March 20, 2014, a jury found Appellant guilty of the continuous sexual

assault of A. Based on Appellant’s pretrial election, the same jury proceeded to

hear punishment evidence. See Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b).

At a hearing outside the presence of the jury, the State offered into evidence

Appellant’s “ongoing sexual abuse” of D., occurring between 1991 and 2001,


      4
       The State had difficulty identifying D. because she was referred to only by
pseudonym in the investigative file. Although an investigation occurred after D.
made her outcry statement in 2001, none of the investigative evidence was
available at the time of Appellant’s trial.
      5
       Although Appellant was never indicted, we will refer to this evidence as
extraneous-offense evidence.


                                         3
when D. was five until she was fifteen. At the time of the abuse, Appellant was

dating D.’s mother, and D. finally exposed Appellant’s abuse after she discovered

her mother planned to marry Appellant. D. described the hand signals Appellant

used to indicate when he wanted to touch her; Appellant’s repeated touching of

her breasts and sexual organ; and being given alcohol, cigarettes, or special trips

when she consented to Appellant’s demands. Additionally, D. testified that she

was subjected to sexual intercourse for twelve minutes at the age of five, in an

outside carport when she was twelve, and while camping at the age of twelve.

      Appellant objected to the admission of this extraneous-offense evidence

on the grounds that he had received insufficient notice of the State’s intent to use

it and its probative value was outweighed by its prejudicial effect. See Tex. Code

Crim. Proc. Ann. art. 37.07, § 3(g); Tex. R. Evid. 403. The trial court overruled

Appellant’s objection, concluding that the evidence was admissible:

      The Court finds that under the circumstances of the case, notice of
      the extraneous offense, just evidence in the testimony of the
      witness, was reasonable and sufficient. The Court finds further that
      . . . the jury, based on the evidence presented, could make a
      determination beyond a reasonable doubt that [Appellant] committed
      the extraneous offenses outlined in that testimony. Therefore, the
      Court will allow the extraneous offense to be offered into evidence.

The jury heard D.’s testimony and subsequently assessed his punishment at life

confinement.

                                 II. DISCUSSION

      Appellant appeals his sentence, arguing in a sole issue that the trial court

abused its discretion by admitting D.’s testimony at punishment. To support his


                                         4
argument, Appellant focuses on the State’s failure to provide timely notice of its

intent to use the extraneous-offense evidence at punishment and on the unduly

prejudicial nature of the evidence.

                    A. STANDARD OF REVIEW AND ARTICLE 37.07

      We review a trial court’s admission of extraneous-offense evidence under

an abuse-of-discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex.

Crim. App. 1996) (plurality op.). Under this standard, we will uphold the trial

court’s ruling if it was within the zone of reasonable disagreement. Hayden v.

State, 296 S.W.3d 549, 553 (Tex. Crim. App. 2009).

      The admissibility of evidence at the punishment stage of a trial is controlled

by article 37.07:


      [E]vidence may be offered by the state and the defendant as to any
      matter the court deems relevant to sentencing, including but not
      limited to the prior criminal record of the defendant, his general
      reputation, his character, an opinion regarding his character, the
      circumstances of the offense for which he is being tried, and . . . any
      other evidence of an extraneous crime or bad act that is shown
      beyond a reasonable doubt by evidence to have been committed by
      the defendant or for which he could be held criminally responsible,
      regardless of whether he has previously been charged with or finally
      convicted of the crime or act.


Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1).        Thus, the trial court first

determines as a matter of law whether the extraneous-offense evidence is

relevant and admissible, and the jury then determines as a matter of fact whether




                                         5
the extraneous offense was proven beyond a reasonable doubt. 6 Smith v. State,

227 S.W.3d 753, 759–60 (Tex. Crim. App. 2007); Mitchell, 931 S.W.2d at 954.

                                    B. NOTICE

       Article 37.07, section 3(g) incorporates the notice requirement in rule

404(b) and provides that the State must give a defendant reasonable notice of its

intent to introduce extraneous-offense evidence at punishment if the defendant

requests such notice. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (referring to

Tex. R. Evid. 404(b)). The statute further provides that notice is reasonable “only

if the notice includes the date on which and the county in which the alleged crime

or bad act occurred and the name of the alleged victim of the crime or bad act.”

Id.   The purpose of the notice requirement is to prevent unfair surprise to a

defendant. See Nance v. State, 946 S.W.2d 490, 493 (Tex. App.—Fort Worth

1997, pet. ref’d).    The sufficiency of the State’s notice depends on the

circumstances of each case. See Webb v. State, 36 S.W.3d 164, 178 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d) (op. on reh’g en banc). The trial

court has discretion to determine what constitutes substantial compliance with

the statute’s notice requirement, but absolute noncompliance may not be

excused. Cf. Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005)

(discussing rule 404(b)’s notice requirement).

       6
        Appellant does not challenge the jury’s implicit factual determination
regarding the admitted extraneous-offense evidence but solely argues that the
trial court erred by concluding that the evidence was admissible as a matter of
law.


                                        6
      The State notified Appellant pursuant to his pretrial request of its intent to

introduce extraneous-offense evidence at punishment. Although the State did

not notify Appellant of D.’s name until March 13, 2014—five days before trial—

that was the same day the State discovered her name and determined she was

credible. Appellant received the case report of D.’s allegations against Appellant,

albeit with a pseudonym, more than ten days before the trial. Appellant was not

at a disadvantage regarding the extraneous-offense evidence as he had the

same notice of the evidence as did the State. The circumstances surrounding

the timing of the State’s notice lead us to conclude that the State substantially

complied with the notice requirement of article 37.07 and that the trial court did

not abuse its discretion by admitting the extraneous-offense evidence. See, e.g.,

Stricklin v. State, No. 2-07-235-CR, 2008 WL 2510642, at *7–8 (Tex. App.—Fort

Worth June 19, 2008, pet. ref’d) (mem. op., not designated for publication)

(holding notice to defendant of extraneous-offense evidence “as soon as the

prosecutor discovered it” sufficient to justify trial court’s admission of evidence

and citing similar cases).

            C. WEIGHING PROBATIVE VALUE AND PREJUDICIAL EFFECT

      Appellant also argues that the trial court abused its discretion because the

prejudicial effect of D.’s testimony substantially outweighed any probative value it

might have had. Article 37.07 provides that D.’s testimony was relevant to the

jury’s determination of Appellant’s punishment. Tex. Code Crim. Proc. Ann. art.

37.07, § 3(a)(1); Fowler v. State, 126 S.W.3d 307, 310 (Tex. App.—Beaumont


                                         7
2004, no pet.). There is a presumption that relevant evidence is admissible.

Tex. R. Evid. 402; Sanders v. State, 422 S.W.3d 809, 815 (Tex. App.—Fort

Worth 2014, pet. ref’d). But extraneous-offense evidence offered at punishment

is subject to exclusion if its unfair, prejudicial effect outweighs any probative

value it may have. See Tex. R. Evid. 403; Rogers v. State, 991 S.W.2d 263,

266–67 (Tex. Crim. App. 1999). In determining the probative value of evidence,

the trial court should favor admission and consider (1) the potential of the

evidence to impress the jury in some irrational, indelible way or to suggest a

decision on an improper basis, (2) the time the proponent needs to develop the

evidence, and (3) the proponent’s need for the evidence.             See Sanders,

422 S.W.3d at 815.

      Evidence of the sexual assault of a child over a ten-year period routinely

carries the potential for a high degree of prejudice. See id. But that prejudice

alone is not unfair and is insufficient to justify its exclusion. Rodriguez v. State,

345 S.W.3d 504, 508–09 (Tex. App.—Waco 2011, pet. ref’d). Considering that

Appellant’s abuse of D. spanned ten years, the State spent a relatively short

time—ten pages in the two volumes of the reporter’s record containing

punishment testimony—developing D.’s testimony. Although the effect of D.’s

testimony certainly was indelible on the jury, it was not an irrational impression.

D.’s testimony served a legitimate purpose at punishment and was relevant and

admissible. The trial court did not abuse its discretion by concluding its probative

value outweighed any prejudicial effect. See, e.g., Sanders, 422 S.W.3d at 815


                                         8
(concluding punishment evidence of defendant’s extraneous sexual offense with

a child was not unduly prejudicial after defendant convicted of assault in a dating

relationship); Rodriguez, 345 S.W.3d at 509 (concluding trial court did not abuse

its discretion by admitting evidence of defendant’s sexual assaults he committed

while a juvenile at punishment phase of defendant’s aggravated-sexual-assault

trial); Fowler, 126 S.W.3d at 311 (holding admission of extraneous sexual

assaults of a minor at punishment phase of aggravated-sexual-assault trial not

an abuse of discretion under rule 403).

                               III. CONCLUSION

      Because the trial court did not abuse its discretion by admitting the

extraneous-offense evidence at trial, we overrule Appellant’s issue and affirm the

trial court’s judgment. See Tex. R. App. P. 43.2(a).



                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 23, 2015




                                          9
