                               Fourth Court of Appeals
                                        San Antonio, Texas
                                 MEMORANDUM OPINION

                                          No. 04-19-00098-CR

                                           Raymond MANN,
                                              Appellant

                                                  v.

                                         The STATE of Texas,
                                               Appellee

                     From the 399th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2017-CR-5447
                             Honorable Frank J. Castro, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Irene Rios, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: February 19, 2020

AFFIRMED

           Raymond Mann appeals his conviction for aggravated assault against a public servant. In

two issues, Mann contends the evidence is insufficient to sustain his conviction and the trial court

erred by allowing extraneous offense evidence against him during the punishment phase of trial.

We affirm the trial court’s judgment.

                                            BACKGROUND

           On February 26, 2017, San Antonio Police Department (SAPD) Officers Robert Dupee

and Rickeesia Moore assisted Kirby Police Department (KPD) with a situation involving a robbery
                                                                                   04-19-00098-CR


suspect who ran from KPD. After 7:00 p.m. that evening, Officers Dupee and Moore were

dispatched to the 7100 block of Northeast Loop 410 to investigate reports of a suspicious person

who also matched the description of the earlier robbery suspect. When the officers arrived at the

location, the suspicious person, who was later identified as Mann, was walking along Loop 410,

and the officers parked their marked patrol vehicle on the access road. Using the vehicle’s PA

system, Officer Dupee directed Mann to get off the highway and come to the vehicle. Mann

continued to walk away from the officers but, after again being directed to stop, Mann stopped and

walked to the officers’ vehicle. Officer Dupee instructed Mann to place his hands on the hood of

the vehicle. Mann did not place his hands on the vehicle. As Mann exhibited behavior that he

intended to run, Officer Dupee placed his hand on his taser. Mann backed away from the officers

and began to run away.

       Officer Dupee saw Mann reach into his right pocket as he ran away. According to Officer

Moore, when Mann turned back toward the officers “he drew and aimed.” Officer Dupee saw

Mann pull “something shiny” from his pocket. When Mann turned back toward the officers,

Officer Dupee “had a good bead on him” and “tased him.” According to Officer Dupee, he had

heard what he described as a metallic click that he associated with a weapon being fired. Although

Officer Dupee initially thought Mann held a cell phone, Officer Dupee realized the item Mann

pulled from his pocket was a gun after Mann was incapacitated by the taser.

       SAPD officers subsequently arrested Mann, who was later indicted for aggravated assault

against a public servant. A jury convicted Mann of the indicted offense. Based upon the jury’s

recommendation, the trial court sentenced Mann to twenty years’ imprisonment.




                                               -2-
                                                                                     04-19-00098-CR


                                             ANALYSIS

                                   Sufficiency of the Evidence

       Mann contends the evidence is insufficient to support his conviction for aggravated assault

against a public servant “because there was no evidence that [Mann] intended to cause

apprehension of imminent bodily injury. . . .”

                                       Standard of Review

       When examining the sufficiency of the evidence supporting a conviction, we consider all

the evidence in the light most favorable to the verdict to determine whether, based on the evidence

and reasonable inferences therefrom, a rational trier of fact could have found each element of the

offense beyond a reasonable doubt. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).

As the factfinder, the jury is permitted to draw any reasonable inferences from the evidence so

long as the inferences are supported by the record. Ramsey v. State, 473 S.W.3d 805, 809 (Tex.

Crim. App. 2015). A person’s acts and conduct are generally reliable circumstantial evidence of

intent. Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009). “As long as the verdict is

supported by a reasonable reference, it is within the province of the factfinder to choose which

inference is most reasonable.” Id. at 523.

                                         Applicable Law

       A person commits the offense of assault if the person intentionally or knowingly threatens

another with imminent bodily injury. TEX. PENAL CODE ANN. § 22.01(a)(2). A person commits

aggravated assault if the person commits the offense of assault as described in section 22.01 of the

Penal Code and uses or exhibits a deadly weapon during the commission of the assault. Id.

§ 22.02(a)(2).

       The Penal Code instructs that “[a] person acts intentionally, or with intent, with respect to

the nature of his conduct or to a result of his conduct when it is his conscious objective or desire


                                                 -3-
                                                                                                   04-19-00098-CR


to engage in the conduct.” TEX. PENAL CODE ANN. § 6.03(a). “A person acts knowingly, or with

knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct

when he is aware of the nature of his conduct or that the circumstances exist.” Id. § 6.03(b). “A

person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware

that his conduct is reasonably certain to cause the result.” Id. “Threatens” is not defined in the

Penal Code, but the Court of Criminal Appeals has recognized the plain language of section

22.01(a)(2), and past jurisprudence indicates threat requires proof that, by his conduct, a defendant

intended to cause an apprehension of imminent bodily injury. See Teeter v. State, PD-1169-09,

2010 WL 3702360, at *6 (Tex. Crim. App. Sept. 22, 2010) (not designated for publication).

“Imminent” is also not defined in the Penal Code, but the Court of Criminal Appeals has defined

the term to mean “ready to take place, near at hand, hanging threateningly over one’s head,

menacingly near.” Garcia v. State, 367 S.W.3d 683, 689 (Tex. Crim. App. 2012) (internal citations

omitted). “‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.”

TEX. PENAL CODE ANN. § 1.07(a)(8). “The gist of the offense of assault as set out in [the Penal

Code] is that one acts with intent to cause a reasonable apprehension of imminent bodily injury

(though not necessarily with intent to inflict such harm).” Garrett v. State, 619 S.W.2d 172, 174

(Tex. Crim. App. 1981).

                                                   Discussion

        The focus of Mann’s sufficiency challenge is whether Mann intended to cause

apprehension of imminent bodily injury.1 Specifically, Mann argues we should find the evidence

insufficient to support this element because Officer Dupee’s testimony that he initially thought



1
 Because we are not required to address issues which are not briefed, we focus solely on that element of the offense.
See Johnson v. State, 583 S.W.3d 300, 307 n.4 (Tex. App.—Fort Worth 2019, pet ref’d) (citing Burks v. State, No.
PD-0992-15, 2017 WL 3443982, at *1 (Tex. Crim. App. June 28, 2017) (op. on reh’g) (not designated for publication).


                                                        -4-
                                                                                     04-19-00098-CR


Mann held a cell phone showed Officer Dupee did not perceive a threat. “[T]here is no statutory

requirement that a victim must instantaneously perceive or receive that threat of imminent bodily

injury as the actor is performing it.” Olivas v. State, 203 S.W.3d 341, 350–51 (Tex. Crim. App.

2006). “[T]he focus is not on a victim’s perception of the defendant’s conduct, but rather on the

conduct itself.” Teeter, 2010 WL 3702360, at *5. A defendant’s intent or knowledge is a question

of fact to be determined from a totality of the circumstances including the defendant’s acts, words,

and conduct. See Nisbett v. State, 552 S.W.3d 244, 267 (Tex. Crim. App. 2018); Hart v. State, 89

S.W.3d 61, 64 (Tex. Crim. App. 2002).

       Here, the jury heard testimony from both Officer Dupee and Officer Moore regarding the

events surrounding the offense. The jury also viewed video footage from both officers’ body

cameras. The evidence presented during trial established that when Mann ran from the officers,

he reached into his pocket. Officer Dupee testified that Mann’s act placed him on heightened alert.

According to Officer Dupee, Mann pulled “something shiny” out of his pocket. Officer Dupee

further testified that when Mann turned back toward the officers, Officer Dupee “heard a distinct

click of like a hammer hitting a gun … .” After Officer Dupee used his taser on Mann, both

officers saw that Mann dropped a gun. Officer Dupee also testified he believed Mann “was going

to try to shoot [him] or [his] partner …” and was angry because of it.

       When all the evidence is viewed in the light most favorable to the verdict, a rational jury

could have reasonably found from Mann’s acts and conduct that Mann intended to cause Officer

Dupee reasonable apprehension of imminent bodily injury. Consequently, we conclude the

evidence in this case is sufficient to sustain the jury’s finding that Mann committed the offense of

aggravated assault against a public servant.

       Issue one is overruled.




                                                -5-
                                                                                      04-19-00098-CR


                                      Extraneous Offenses

       In his second issue, Mann contends the trial court committed error by allowing the State to

introduce extraneous offenses against him during the punishment phase without proper notice.

Mann argues the State’s amended notice was unreasonable under the facts and circumstances of

the case. Mann further argues the admission of the unadjudicated bad acts violated Texas Rule of

Evidence 403 because the danger of unfair prejudice substantially outweighs the probative value

of the evidence.

                                       Standard of Review

       We review a trial court’s decision to admit evidence of extraneous offenses, including its

decision as to whether the probative value of the evidence was substantially outweighed by the

danger of unfair prejudice, for an abuse of discretion. Gonzalez v. State, 544 S.W.3d 363, 370

(Tex. Crim. App. 2018). As long as the trial court’s decision falls within the zone of reasonable

disagreement, we will affirm the decision. Id. If an abuse of discretion is found because the notice

was unreasonable, a harm analysis is required under Texas Rule of Appellate Procedure 44.2. See

TEX. R. APP. P. 44.2.

                                         Applicable Law

       Upon timely request of a defendant, the State is required to provide notice that it intends to

introduce evidence at punishment of the defendant’s other crimes or bad acts during its case-in-

chief. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1), (g). The notice is to be given in the

manner required by Rule 404(b) of the Texas Rules of Evidence. Id., § 3(g). Further:

       If the attorney representing the state intends to introduce an extraneous crime or
       bad act that has not resulted in a final conviction in a court of record or a probated
       or suspended sentence, notice of that intent 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. The requirement under
       this subsection that the attorney representing the state give notice applies only if



                                                -6-
                                                                                                    04-19-00098-CR


         the defendant makes a timely request to the attorney representing the state for the
         notice.

Id.

         The purpose of the notice requirement is to avoid unfair surprise and enable a defendant to

prepare to meet the extraneous offense evidence. Roethel v. State, 80 S.W.3d 276, 282 (Tex.

App.—Austin 2002, no pet.) (when assessing harm, considering whether the defendant was

surprised and whether the surprise affected his ability to prepare for cross-examination or present

mitigating evidence), cited in Hernandez v. State, 176 S.W.3d 821, 824–25 (Tex. Crim. App. 2005)

(analogizing to Roethel when the State did not provide adequate notice of extraneous offenses

under Rule 404 of the Texas Rules of Evidence); see also Segovia v. State, 467 S.W.3d 545, 553

(Tex. App.—San Antonio 2015, pet ref’d) (quoting Roethel, 80 S.W.3d at 282).

                                                    Discussion

History

         Following Mann’s timely request filed on October 23, 2017, the State provided Mann

notice on May 22, 2018 of its intention to introduce evidence of extraneous offenses during the

punishment phase, which included three unadjudicated bad acts. In an amended notice dated

February 1, 2019, 2 the State provided Mann notice of twelve additional unadjudicated bad acts.

Although not included in the record before us, the parties agree Mann objected to the amended

notice as unreasonable prior to the beginning of voir dire. According to the parties, the trial court

overruled Mann’s objection.




2
  We note that February 1, 2019 fell on a Friday. The appellate record indicates voir dire began on Monday, February
4, 2019, and the punishment phase began on Wednesday, February 6, 2019. We additionally note that the amended
notice is not included in the original clerk’s record on appeal but was provided in a supplemental record. The copy of
the amended notice contained in the supplemental record is not file-stamped to show when it was filed in the court
below.


                                                        -7-
                                                                                       04-19-00098-CR


       Mann again objected to the amended notice as unreasonable during the punishment phase.

Outside the presence of the jury, Mann pointed out that some of the instances of unadjudicated bad

acts occurred more than ten years in the past and that, at least one, did not include a year date.

Mann reiterated the notice was unreasonable because it did not allow enough time for

investigation, which impeded his ability to cross-examine the witness. Mann also argued the

unadjudicated bad acts contained in the notice were inadmissible under Texas Rule of Evidence

403. When the trial court pointed out Mann did not object on Friday, February 1, 2019, upon

receipt of the amended notice, Mann informed the trial court he did not receive the notice until

7:20 p.m. Mann further requested the trial court perform an in camera review and evaluate the

amended notice item-by-item. The trial court overruled Mann’s objections to the amended notice

and denied Mann’s request for a running objection.

No Harm

       We assume without deciding that the trial court erred by overruling Mann’s objection to

the State’s amended notice as unreasonable and allowing admission of the extraneous

unadjudicated bad acts listed in the amended notice. However, even assuming that the trial court

erred, the record before us does not show harm.

       Error in the admission of evidence is non-constitutional error. Gonzalez, 544 S.W.3d at

373. We disregard non-constitutional errors that do not affect a defendant’s substantial rights. See

TEX. R. EVID. 103(a); TEX. R. APP. P. 44.2(b); Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim.

App. 2000). A substantial right is affected, i.e., the error is harmful, if the error had a substantial

and injurious effect or influence in determining the jury’s verdict. See Morales, 32 S.W.3d at 867.

In the context of inadequate Article 37.07 notice, we evaluate harm in light of the statute’s purpose

to prevent surprise and enable the defendant to prepare to meet the extraneous offense evidence.

See Roethel, 80 S.W.3d at 281–82; cf. Hernandez, 176 S.W.3d at 825 (applying Roethel harm


                                                 -8-
                                                                                      04-19-00098-CR


analysis to inadequate notice under Rule 404). The admission of inadequately noticed evidence is

not “‘injurious’ if the defendant was not surprised by the evidence.” Hernandez, 176 S.W.3d at

825; see also Roethel, 80 S.W.3d at 282.

       Here, Mann argued to the trial court that the unreasonableness of the State’s amended

notice prevented him from adequately preparing, which impeded his ability to cross-examine the

State’s witness. The State’s amended notice in this case identified only one witness through whom

it intended to present the evidence of unadjudicated bad acts — C. Salazar, Mann’s former

common-law wife. In comparing Salazar’s testimony to the amended notice, we note Salazar did

not testify to all of the unadjudicated bad acts listed in the amended notice. With regard to the

items listed in the amended notice about which Salazar testified, for the majority of the items, the

State presented corresponding exhibits in the form of text and voicemail messages from Mann to

Salazar. The remainder of Salazar’s testimony related to items listed in the State’s original notice.

We additionally note that Mann did not request a continuance so he could prepare to meet the

extraneous offense evidence. See McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App.

2005) (reasoning that the defendant did not suffer harm from a lack of notice under Rule 404 in

part because if the defendant had been surprised, he “could have requested a continuance”).

       Further, the record shows Mann cross-examined Salazar regarding the “toxic relationship”

between the couple and attempted to elicit testimony regarding the correlation of Mann’s alcohol

and drug use to the events about which Salazar testified. Mann testified on his own behalf during

the punishment phase, and stated Salazar lied regarding her allegations of sexual assault. However,

Mann acknowledged striking Salazar in front of their children and engaging in family violence.

We further note Mann presented testimony from Mann’s long-time family friend, his nephew, and

his sister, through which the witnesses acknowledged Mann’s past behavior and drug and alcohol

use, and attempted to discredit Salazar’s testimony.


                                                -9-
                                                                                      04-19-00098-CR


       There is no indication in the record before us that Mann was surprised by the State’s desire

to introduce evidence of the additional unadjudicated bad acts or that he was unable to meet the

evidence against him. If there had been legitimate surprise that required Mann to reevaluate his

trial strategy during the punishment phase, Mann could have requested a continuance to prepare

to meet the extraneous offense evidence, which he did not do. See McDonald, 179 S.W.3d at 578.

Nor has Mann explained how, because of the State’s failure to give reasonable notice, he was

unable to prepare a defense in this case. See Hernandez, 176 S.W.3d at 826. Additionally, the

record does not reflect that Mann’s ability to develop a trial strategy or prepare a defense was

adversely affected. Accordingly, we conclude that the error did not have a substantial and injurious

effect or influence in determining the jury’s verdict. Therefore, the error must be disregarded. See

TEX. R. APP. 44.2(b).

Rule 403

       Mann additionally complains that the admission of the unadjudicated bad acts listed in the

State’s amended notice violated Texas Rule of Evidence 403 because the danger of unfair prejudice

substantially outweighs the probative value of the evidence. Although Mann’s brief includes a

brief discussion of the legal requirements and the balancing test employed by appellate courts

relevant to Rule 403, the brief fails to include any analysis, argument, or citation to the record to

support his contention that the trial court erred by failing to exclude this evidence. We are under

no obligation to make Mann’s arguments for him. See Busby v. State, 253 S.W.3d 661, 673 (Tex.

Crim. App. 2008) (an appellate court has no obligation “to construct and compose” a party’s

“issues, facts, and arguments with appropriate citations to authorities and to the record” (internal

citations omitted)). Accordingly, we conclude this portion of Mann’s second issue is inadequately

briefed and presents nothing for our review. TEX. R. APP. P. 38.1

       Issue two is overruled.


                                                - 10 -
                                                                             04-19-00098-CR


                                       CONCLUSION

     For the foregoing reasons, we affirm the judgment of the trial court.

                                               Irene Rios, Justice

DO NOT PUBLISH




                                            - 11 -
