      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00414-CR



                                 Myron Bishop Head, Appellant

                                                  v.

                                   The State of Texas, Appellee


  FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
    NO. 09-1170-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Myron Bishop Head of four counts of the offense

of aggravated robbery. See Tex. Penal Code Ann. § 29.03 (West 2011). Punishment was assessed

at 75 years’ imprisonment on each of counts one, two, and three, and 90 years’ imprisonment on

count four, with the sentences to run concurrently. In five points of error on appeal, Head asserts

that the district court: (1) erred in denying his challenge to two of the State’s peremptory strikes;

(2) abused its discretion in admitting evidence of an extraneous offense; (3) abused its discretion in

overruling Head’s objection to an allegedly improper closing argument by the prosecutor; (4) erred

in not including in the charge on punishment an instruction that the jury must disregard certain

extraneous-offense evidence; and (5) abused its discretion in admitting evidence during punishment

of extraneous offenses for which the State allegedly failed to provide reasonable notice. We will

affirm the judgments of conviction.
                                         BACKGROUND

               The jury heard evidence that on the night of August 9, 2009, five women were robbed

by two men at gunpoint outside a hotel in Round Rock. The evidence tended to show that, during

the course of the robbery, one of the women attempted to resist and flee but was caught and

physically assaulted by one of the men, who hit and kicked her repeatedly after she had fallen to the

ground. According to the testimony of one of the other victims who had witnessed the assault, after

the man had subdued the woman, he grabbed her purse and jumped into a blue SUV along with the

other man, and sped away in the vehicle. The women then ran into the hotel and called the police.

               Shortly thereafter, after receiving a description of the suspect vehicle, officers

with the Round Rock Police Department observed the vehicle traveling at a high rate of speed. The

officers initiated pursuit. According to the testimony of one of the pursuing officers, Sergeant

Nate Zoss, one of the suspects was observed jumping out of the vehicle as it slowed down to stop.

After the vehicle had stopped, two other suspects fled the vehicle. Remaining inside the vehicle

were two female suspects later identified as Kimberly Almanza and Ashley Markowsky, both of

whom were arrested and provided statements. One of the three suspects who had fled the vehicle,

later identified as William Ellis, was found walking alongside the frontage road of IH-35 and was

arrested. Ellis was identified as the driver of the vehicle.

               The two other suspects who had fled the vehicle were later alleged to be the

gunmen. One of the gunmen, later identified as Jontae Love, was eventually apprehended in

San Antonio. The other suspected gunman, Head, was apprehended on the night of the robbery.

Kristopher Fischer, an eyewitness for the State, testified that on the night in question, he saw an




                                                  2
individual with a handgun get into an SUV and decided to follow the vehicle and call the police.1

Fischer, who was pursuing the vehicle at the same time as the police, testified that he had observed

an individual jump out of the vehicle and flee. While the police continued pursuing the vehicle,

Fischer decided to follow the individual and was able to notify the police of the individual’s

whereabouts. Eventually, the officers came upon a man lying on the ground in the middle of a field,

apprehended him, and brought him to Fischer, who identified him as the same individual whom he

had been following. The man, later identified as Head, was then arrested. One of the officers who

had arrested Head testified that a large sum of money was found on Head’s person, along with a

wallet containing an identification card that belonged to Jontae Love.

               Three of the State’s witnesses were Head’s alleged accomplices—Love, Markowsky,

and Almanza. They provided detailed testimony implicating Head in the robberies. Love testified

that, among other things, he and Head had robbed the women at gunpoint and that Head had

assaulted one of the women when she had refused to hand over her purse. Markowsky testified in

part that, as they were driving away following the robbery, Head told her that “[h]e had to

pistol-whip that bitch because she wouldn’t give up her purse.” Almanza testified that, among other

things, when Head had jumped out of the vehicle during the flight from the police, he had possession

of the money that had been stolen from the women.

               The jury found Head guilty of all four counts of aggravated robbery as alleged, and

punishment was assessed as noted above. This appeal followed.




       1
          During the punishment phase, the State presented evidence tending to show that Fischer
had also been robbed by Head and his accomplices that night and that, after the incident, Fischer had
decided to pursue the robbers and inform the police of their whereabouts.

                                                 3
                                            ANALYSIS

Batson challenge

               Before the jury was empaneled, Head made a Batson challenge to two of the

State’s peremptory strikes, claiming that they were racially motivated. See Batson v. Kentucky,

476 U.S. 79 (1986). The potential jurors who Head claimed were struck on the basis of race were

juror number 25 and juror number 47, both of whom were identified as African-Americans. After

hearing argument concerning the State’s explanations for these strikes, the district court ultimately

denied Head’s Batson challenge as to both jurors. In his first point of error, Head asserts that the

district court erred in denying his Batson challenge.

               In Batson, the United States Supreme Court held that a prosecutor is forbidden from

exercising peremptory strikes based solely on the race of the potential juror. Id. at 89. To succeed

on a Batson challenge, the defendant must demonstrate, by a preponderance of the evidence, that the

prosecutor indulged in purposeful discrimination against a member of a constitutionally-protected

class in exercising his peremptory challenges. Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim.

App. 2008). There is a three-step process for evaluating claims that a prosecutor has impermissibly

exercised its peremptory challenges on the basis of race. See Hernandez v. New York, 500 U.S. 352,

358 (1991). “First, the defendant must make a prima facie showing that the prosecutor has exercised

peremptory challenges on the basis of race.” Id. (citing Batson, 476 U.S. at 96-97). “Second, if the

requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral

explanation for striking the jurors in question.” Id. (citing Batson, 476 U.S. at 97-98). “Finally, the

trial court must determine whether the defendant has carried his burden of proving purposeful

discrimination.” Id. (citing Batson, 476 U.S. at 98).



                                                  4
               On appeal, the State does not dispute that Head satisfied his step-one obligation

to make a prima facie showing that the State exercised its peremptory challenges on the basis of

race, nor did the State challenge that showing below. Thus, our review is confined to the second and

third steps of the analysis.2 “At the second step of this process, the proponent of the strike need only

tender an explanation that is race-neutral on its face.” Watkins, 245 S.W.3d at 447 (citing Purkett

v. Elem, 514 U.S. 765, 767-68 (1995)). “The ultimate plausibility of that race-neutral explanation

is to be considered as part of the third step of the analysis, in which the trial court determines

whether the opponent of the strike (usually the defendant) has satisfied his burden of persuasion to

establish by a preponderance of the evidence that the strike was indeed the product of the

proponent’s purposeful discrimination.” Id. (citing Purkett, 514 U.S. at 768).

               “Whether the opponent [of the strike] satisfies his burden of persuasion to show

that the proponent’s facially race-neutral explanation for his strike is pre-textual, not genuine, is

a question of fact for the trial court to resolve in the first instance.” Id. (citing Gibson v. State,

144 S.W.3d 530, 534 (Tex. Crim. App. 2004) (“The term ‘pretext’ is solely a question of fact; there

is no issue of law.”)). Accordingly, on appeal, a trial court’s ruling on the issue of discriminatory

intent must be sustained unless it is “clearly erroneous.” Snyder v. Louisiana, 552 U.S. 472, 477

(2008); Watkins, 245 S.W.3d at 447-48. In other words, the trial court’s ruling will not be disturbed

on appeal unless the reviewing court is “left with a definite and firm conviction that a mistake

has been committed.” Hernandez, 500 U.S. at 369. “This is a highly deferential standard because

the trial court is in the best position to determine whether a prosecutor’s facially race-neutral

explanation for a peremptory strike is genuinely race-neutral.” Gibson, 144 S.W.3d at 534; see also


       2
        Consequently, we are not called upon to address the implications of Hassan v. State,
369 S.W.3d 872, 875-78 (Tex. Crim. App. 2012).

                                                   5
United States v. Williams, 264 F.3d 561, 572 (5th Cir. 2001) (Batson inquiry is “quintessentially a

question of fact which turns heavily on demeanor and other issues not discernable from a cold

record, such that deference to the trial court is highly warranted”). Therefore, “in the absence of

exceptional circumstances,” we are to defer to the trial court. Hernandez, 500 U.S. at 366. We may

not substitute our opinion for the trial court’s factual assessment of the neutrality of the prosecutor’s

explanation for exercising strikes, and we focus on the genuineness, rather than the reasonableness,

of the prosecutor’s asserted nonracial motive. Gibson, 144 S.W.3d at 534. Moreover, we are to

view the evidence relevant to the Batson challenge in the light most favorable to the trial court’s

ruling. Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992); Moore v. State, 265 S.W.3d

73, 78 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

                We begin our analysis with juror 25. The State offered multiple explanations for

this strike, specifically that the juror had stated that she favored a sentence based on rehabilitation

over punishment or deterrence, had indicated that she believed it was unfair for a co-defendant

to receive a reduced sentence if he testified for the State, and had children in the same age range

as the defendant. These are legitimate, race-neutral reasons for striking a potential juror. See, e.g.,

Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002) (juror’s perceived bias against aspect

of case); Moore v. State, 265 S.W.3d 73, 87 (Tex. App.—Houston [1st Dist.] 2008), pet. dism’d,

improvidently granted, 286 S.W.3d 371 (Tex. Crim. App. 2009) (juror’s parental status);

Montgomery v. State, 198 S.W.3d 67, 76 (Tex. App.—Fort Worth 2006, pet. ref’d) (belief in

rehabilitation as primary goal of punishment); see also Bell v. Ozmint, 332 F.3d 229, 240 n.5

(4th Cir. 2003) (juror had children of similar age to defendant). Thus, the remaining question is

whether the record, viewed in the light most favorable to the denial of the Batson challenge, supports



                                                   6
the district court’s finding that Head failed to prove by a preponderance of the evidence that these

race-neutral reasons were not genuine but instead were a pretext for racial discrimination.

                We conclude that the record supports the district court’s finding. The defendant

was approximately 20 years old at the time he allegedly committed the offense. It is undisputed that

juror 25 had children in the age range of 19 to 21. Thus, the district court would not have clearly

erred in finding that this explanation for the strike was genuine. Head contends that the stated reason

was not genuine because there were other jurors who had children who were not struck. However,

the record reflects that these other jurors had children who were further removed in age from

the defendant, including juror 4, who had children in the range of 3 to 25; juror 9, who had children

in the range of 21 to 31; and juror 50, who had children in the range of 26 to 35.3 Thus, the

district court could have reasonably concluded that these other jurors were not similarly situated to

the juror who was struck. Head also asserts that the age explanation was not genuine because the

State never questioned the jurors about how having children similar in age to the defendant would

affect their judgment. However, a lack of questioning does not automatically undermine a proposed

race-neutral explanation. See Chambers v. State, 866 S.W.2d 9, 24 (Tex. Crim. App. 1993). Here,

the district court would not have clearly erred in concluding that the prosecutors, based on their prior

trial experience, genuinely believed that having children who were similar in age to the defendant

could have a tendency to make the juror more sympathetic to the defendant’s circumstances.




       3
          These age ranges were presumably gleaned from the juror information cards, which have
not been included in the record on appeal. However, the prosecutor recited these age ranges in
open court on the record, and they were not disputed by Head. Accordingly, we are to accept
these statements by the prosecutor as true. See Emerson v. State, 820 S.W.2d 802, 804 (Tex. Crim.
App. 1991).

                                                   7
                Additionally, the State gave reasons for striking juror 25 other than the age of her

children. When the prosecutor asked if it was “fair” for a co-defendant to testify and “get a deal,”

juror 25 answered, “I don’t think it’s fair.” A critical component of the State’s case, the district court

could have reasonably found, was the testimony of Head’s co-defendants. The prosecutor also

noted at the time the question was asked that juror 25 had a “skeptical” face “again,” which, the

district court could have reasonably surmised, indicated that the prosecutor had earlier noticed the

juror’s demeanor in response to the prosecutor’s questions and was genuinely concerned about the

juror’s attitude toward the State. Juror 25 also was the first juror to answer that “rehab” should be

the primary purpose of a defendant’s sentence. Finally, juror 25 was one of the jurors who, when

asked if she could disregard illegally obtained evidence if instructed to do so, answered, “No.” In

conclusion, there were multiple reasons for the State to strike juror 25 that had nothing to do with

her race, and on this record, we cannot conclude that the district court clearly erred in concluding that

these reasons were genuine.

                Regarding juror 47, the stated reasons for this strike were that juror 47 had children

in the same age range as the defendant and was unemployed. These are legitimate, race-neutral

reasons for a strike. See Adair v. State, 336 S.W.3d 680, 687 (Tex. App.—Houston [1st Dist.] 2010,

pet. ref’d) (employment status); Moore, 265 S.W.3d at 87 (children). And, on this record, we cannot

conclude that the district court clearly erred in finding that Head failed to satisfy his burden to

prove that these reasons were a pretext for racial discrimination. It was undisputed that juror 47 had

children in the same age range as the defendant, and the prosecutor explained her reasoning for the

strike as follows: “I was looking for [children ages] 19 to 21, because the Defendant’s specifically

20 years old. So those are the specific age ranges that on my notes I circled, a C for child and a

circle, which [juror 47] had.” In response, Head pointed out that other jurors also had children, but

                                                    8
he did not counter the prosecutor’s explanation that the State was looking for jurors with children

in a specific, narrow age range. Nor did Head challenge in any way the genuineness of the State’s

additional race-neutral explanation that it had also struck juror 47 because she was unemployed.

Thus, there is nothing in this record that leaves us “with a definite and firm conviction that a mistake

has been committed” in the district court’s denial of Head’s Batson challenge as to this juror.4 See

Hernandez, 500 U.S. at 369.

                We overrule Head’s first point of error.


Evidentiary objections during guilt-innocence

                Prior to the testimony of Kristopher Fischer, Head objected to the admission of

evidence tending to show that Fischer had observed Head in possession of a firearm on the night of

the robbery. Head argued that this was extraneous-offense evidence admitted solely for character-

conformity purposes and that it was more prejudicial than probative. See Tex. R. Evid. 403, 404(b).

The district court overruled Head’s objections to the evidence. In his second point of error, Head

asserts that the district court abused its discretion in admitting the evidence.

                We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). The test for abuse of

discretion is whether the trial court acted arbitrarily or unreasonably, without reference to any



       4
           Moreover, to the extent that harm is relevant to our analysis, we also observe that the
twelfth juror to be seated on the jury in this case was juror 45. Therefore, juror 47 would have
been selected, if at all, as the alternate juror. But the alternate juror in this case was never called
upon to serve. Consequently, even if the district court had sustained Head’s Batson challenge to
juror 47, she would not have deliberated on the case, and thus Head would be unable to show that
he was harmed by the error, if any, in excluding the juror. See Rousseau v. State, 855 S.W.2d
666, 680 (Tex. Crim. App. 1993); Johnson v. State, 959 S.W.2d 284, 294 (Tex. App.—Dallas 1997,
pet. ref’d).

                                                   9
guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

A trial court abuses its discretion only when its decision “is so clearly wrong as to lie outside that

zone within which reasonable persons might disagree.” McDonald v. State, 179 S.W.3d 571, 576

(Tex. Crim. App. 2005).

                Evidence of other crimes, wrongs, or acts is not admissible to prove the character of

a person in order to show action in conformity therewith. Tex. R. Evid. 404(b). It may, however,

be admissible for other purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. Id. “The exceptions listed under

Rule 404(b) are neither mutually exclusive nor collectively exhaustive.” De La Paz v. State,

279 S.W.3d 336, 343 (Tex. Crim. App. 2009). “‘Rule 404(b) is a rule of inclusion rather than

exclusion.’” Id. (quoting United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)). “The rule

excludes only that evidence that is offered (or will be used) solely for the purpose of proving

bad character and hence conduct in conformity with that bad character.” Id. (citing Rankin v. State,

974 S.W.2d 707, 709 (Tex. Crim. App. 1996)). A trial court’s ruling on extraneous offense evidence

is generally within the zone of reasonable disagreement “if the evidence shows that 1) an extraneous

transaction is relevant to a material, non-propensity issue, and 2) the probative value of that evidence

is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading of the jury.” Id. at 344 (citing Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim.

App. 1997)).

                Here, the record supports the district court’s finding that the evidence was admissible

for purposes other than character conformity. Specifically, the district court would not have abused

its discretion in finding that Fischer’s testimony tended to establish Head’s identity as one of

the gunmen during the robbery and to corroborate the testimony of the accomplice witnesses. See

                                                  10
Lawton v. State, 913 S.W.2d 542, 553 n.9 (Tex. Crim. App. 1995); Lacaze v. State, 346 S.W.3d 113,

119 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). Additionally, the district court would not

have abused its discretion in finding that because Fischer’s observation of Head in possession of a

firearm occurred on the same night and at around the same time as the charged offense, the evidence

had a tendency to impart “information essential to understanding the context and circumstances of

the events” surrounding the charged offense and thus qualified as “same transaction contextual

evidence,” which is another purpose for which extraneous-offense evidence is admissible under

Rule 404(b). See Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993).

               Nor would it have been outside the zone of reasonable disagreement for the

district court to conclude that the probative value of the evidence was not substantially outweighed

by the danger of unfair prejudice. “The term ‘probative value’ refers to the inherent probative force

of an item of evidence—that is, how strongly it serves to make more or less probable the existence

of a fact of consequence to the litigation—coupled with the proponent’s need for that item of

evidence.” Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “‘Unfair prejudice’ refers

to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an

emotional one.” Id. “Rule 403 favors the admission of relevant evidence and carries a presumption

that relevant evidence will be more probative than prejudicial.” Williams v. State, 958 S.W.2d 186,

196 (Tex. Crim. App. 1997). Evidence should be excluded under rule 403 only when there exists

“a clear disparity between the degree of prejudice of the offered evidence and its probative value.”

Jones v. State, 944 S.W.2d 642, 653 (Tex. Crim. App. 1996).

               Here, the district court could have reasonably found that the probative value of

the evidence was high. The victims of the robbery were unable to identify the men who had robbed

them at gunpoint. Thus, the district court could have reasonably concluded that the State needed

                                                 11
Fischer’s testimony in order to corroborate the testimony of the accomplice witnesses who had

identified Head as one of the gunmen. At the same time, the district court could have reasonably

concluded that there was not a “clear disparity” between the degree of prejudice of the offered

evidence and its probative value. Fischer did not describe the circumstances surrounding Head’s

possession of the firearm. Instead, the prosecutor simply asked Fischer if, around 2:00 to 3:00 in the

morning, Fischer saw an individual, later identified as Head, with a small, black handgun in his hand.

Fischer answered in the affirmative. That was the extent of Fischer’s testimony regarding the firearm

during the guilt / innocence phase.

               On this record, we cannot conclude that the district court abused its discretion

in admitting the evidence. We overrule Head’s second point of error.


Improper jury argument

               In his third point of error, Head asserts that the district court abused its discretion

in overruling Head’s objection to an argument by the prosecutor during closing that, in Head’s

view, constituted an improper comment on Head’s right to a jury trial. The argument to which Head

objected was the following:


       [Prosecutor]:           So now we’re going to talk about Jontae Love. And
                               somehow he’s looking out for number one? Anybody else
                               want to do 40 years, aggravated robbery? Forty years? Do
                               you think he got some kind of sweetheart deal for that? And
                               you know, Defense is right, everyone is entitled to a jury trial.
                               Everyone does have the right to a jury trial. But you sure do
                               get points for not making the victims testify in a jury trial.
                               And every other co-defendant—

       [Defense counsel]:      I object, Your Honor. That’s an impingement on my client’s
                               right to get a fair trial.



                                                 12
       [Prosecutor]:          Responding to Defense counsel. I think it’s open argument,
                              and he’s implying that somehow there was some sweet deal
                              which, by accepting responsibility and pleading guilty, should
                              also be considered.

       [The Court]:           I’m not sure I understand your objection.

       [Defense counsel]:     Your Honor, it’s commenting on my client’s right to a jury
                              trial.

       [Prosecutor]:          I’m responding to Defense counsel’s argument, Your Honor.

       [The Court]:           All right. Objection is overruled.

       [Prosecutor]:          He said everyone has the right to a jury trial. You remember,
                              that’s the first thing he said when he stood up. Everyone has
                              the right to a jury trial. But you know what? You sure do get
                              credit for accepting responsibility and not making someone go
                              through a jury trial, and that’s what Jontae Love did. He
                              could have—he has a right to a jury trial, too. He has just the
                              same right. And he could have said, “State, meet your
                              burden. I’m not going to plead guilty. I’m not going to
                              accept responsibility. I’m not going to assist. I’m not going
                              to try to right the wrong that I’ve committed.” He could have
                              done that. Instead, he stood up and took forty years on
                              aggravated robbery.


               Proper jury argument generally falls within one of four general areas: (1) summation

of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing

counsel; and (4) plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim.

App. 2008); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973); Watts v. State,

371 S.W.3d 448, 457 (Tex. App.—Houston [14th Dist.] 2012, no pet.). We review a trial court’s

ruling on an objection to improper jury argument for abuse of discretion. See Garcia v. State,

126 S.W.3d 921, 924 (Tex. Crim. App. 2004); Nzewi v. State, 359 S.W.3d 829, 841

(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). A trial court abuses its discretion when it acts

arbitrarily or unreasonably, without reference to any guiding rules and principles. Montgomery

                                                13
v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Under this standard, we are to uphold the

trial court’s ruling unless it is so clearly wrong as to lie outside that zone within which reasonable

persons might disagree. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).

                Head asserts that the prosecutor’s argument was an improper comment on Head’s

election to proceed with a jury trial. See Villareal v. State, 860 S.W.2d 647, 649 (Tex. App.—Waco

1993, no pet.). “When a comment is made by a prosecutor regarding a defendant’s election to

proceed with a jury trial, the concern of the court centers around whether the prosecutor had, in

effect, asked the jury to punish or otherwise penalize the defendant for exercising his right to a

trial by jury.” Carlock v. State, 8 S.W.3d 717, 724 (Tex. App.—Waco 1999, pet. ref’d).

                In this case, the district court would not have abused its discretion in concluding that

the prosecutor’s argument was not a comment on Head’s right to a jury trial, but instead was a

response to defense counsel’s argument attacking the credibility of Love’s testimony. Specifically,

defense counsel had argued that because Love had testified for the State, and did so reluctantly,

Love must have received some sort of “deal” from the State in exchange for his testimony.5 The


       5
           Specifically, defense counsel had argued,

       And then we’ve got Jontae Love. . . . And the prosecutor had to direct him or
       basically drag him like a stubborn mule through his testimony. I’m not sure how
       much information you really get or how much you can really evaluate the credibility
       of a person who’s answering or nodding yes or no or grunting. He didn’t say a whole
       lot. He was being forced through his testimony by the State in order to get the deal
       he got, and that doesn’t sound like too good a deal, either.

Defense counsel went on to suggest that it was Love, and not Head, who had assaulted one of the
victims:

       And the last thing [Love]’s not being direct with you about is who struck [the victim]
       with the pistol—or with a handgun; put it that way. You know, he came in here and
       testified against Mr. Head, but you know he’s doing it for the same reason everyone
       else is. He’s doing it to look out for number one, and he’s doing it—if he’s going

                                                  14
clear implication of defense counsel’s argument, the district court could have reasonably found,

was that Love’s testimony was not to be trusted. Therefore, the district court could have reasonably

concluded that the prosecutor was merely countering defense counsel’s credibility argument by

placing Love’s decision to testify in a positive light, arguing that by cooperating with the State, Love

was taking responsibility for his actions. At no point during the argument did the prosecutor refer

to Head’s decision to proceed with a jury trial or request that the jury punish Head for proceeding

to trial. The argument was focused solely on Jontae Love and his decision to cooperate with the

State, which, defense counsel had argued, made Love’s testimony not credible. Additionally, at the

beginning of his argument, defense counsel had stated that “everybody has a right to a jury trial.”

The prosecutor, in his argument, expressly referred to this statement of defense counsel and in

fact agreed with it. The prosecutor then proceeded to use defense counsel’s statement to answer

counsel’s attack on Love’s credibility. For these reasons, it would not have been outside the zone

of reasonable disagreement for the district court to conclude that the prosecutor’s argument was

nothing more than a response to the argument of opposing counsel. See Carlock, 8 S.W.3d at 724;

Taylor v. State, 987 S.W.2d 597, 599-600 (Tex. App.—Texarkana 1999, pet. ref’d).

                We overrule Head’s third point of error.


Punishment issues

        Alleged charge error

                During the punishment phase, the State introduced evidence tending to show that

multiple robberies were committed by Jontae Love on or about July 24, 2009. The State sought to




        to do that, he’s going to minimize his own participation where ever possible. He’s
        going to blame other people for what he’s done. Don’t you know that’s what he did
        in this case? Don’t you know that?

                                                  15
prove that Head had participated in those robberies. In his fourth point of error, Head asserts that

the district court erred in refusing his request to include instructions in the court’s punishment charge

that the jury must disregard this evidence.

                We review claims of jury charge error under the two-pronged test set out in Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Swearingen v. State,

270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref’d). We first determine whether error exists.

Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Swearingen, 270 S.W.3d at 808. If error

exists, we then evaluate the harm caused by the error. Ngo, 175 S.W.3d at 743; Swearingen,

270 S.W.3d at 808. The degree of harm required for reversal depends on whether that error was

preserved in the trial court. When error is preserved in the trial court by timely objection, the record

must show only “some harm.” Almanza, 686 S.W.2d at 171; Swearingen, 270 S.W.3d at 808. By

contrast, unobjected-to charge error requires reversal only if it resulted in “egregious harm.” See

Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008).

                The alleged charge error in this case concerns the evidence presented at punishment.

“For purposes of assessing punishment, the prosecution may offer evidence of any extraneous crime

or bad act that is shown, beyond a reasonable doubt, either to have been (1) an act committed by the

defendant or (2) an act for which he could be held criminally responsible.” Fields v. State, 1 S.W.3d

687, 688 (Tex. Crim. App. 1999) (citing Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West 2005)).

However, “[t]he statute requires that such evidence may not be considered in assessing punishment

until the fact-finder is satisfied beyond a reasonable doubt that these prior acts are attributable to

the defendant.” Id. Accordingly, when extraneous-offense evidence is offered during punishment,

the district court is required to instruct the jury that such evidence may not be considered in assessing



                                                   16
punishment until the jury is satisfied beyond a reasonable doubt that the extraneous offense is

attributable to the defendant. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000).

               Here, the district court provided the required instruction:


       You may consider evidence of an extraneous crime or bad act in assessing
       punishment even if the Defendant has not yet been charged with or finally convicted
       of the crime or act. However, you may consider such evidence only if the extraneous
       crime or bad act has been proven by the State beyond a reasonable doubt to have
       been committed by the defendant.

       Therefore, if you find beyond a reasonable doubt that the defendant committed an
       extraneous crime or bad act, then you may consider such evidence in assessing the
       defendant’s punishment. However, if you have a reasonable doubt as to whether the
       defendant committed an extraneous crime or bad act, then you may not consider such
       evidence in assessing punishment.


Head asserts that an additional instruction was required. According to Head, the jury should have

also been instructed that it must disregard evidence tending to show that Jontae Love committed

certain robberies on July 24, 2009, because, in Head’s view, there was no evidence presented that he

had participated in those robberies. In essence, Head was asking the district court for an “instructed

verdict” that the State had failed to prove his participation in the robberies. Head cites to no

authority requiring that such an instruction be given, and we are aware of no such authority.6

               Additionally, contrary to Head’s assertion, there was evidence presented that he

had participated in the other robberies. Specifically, Kimberly Almanza, who admitted that she was

present when the robberies occurred, testified that Head had also participated. Additionally, two of

the victims testified that there was a second man involved in the robberies, and the jury could have

reasonably inferred from other evidence in the case that this second man was in fact Head. It was


       6
         At trial, defense counsel acknowledged that his request was “very unusual” and provided
no authority to support his requested instruction.

                                                 17
for the jury to decide whether the State had proven beyond a reasonable doubt that Head had

participated in the robberies, and consistent with the law applicable to the case, the court’s charge

instructed the jury of that requirement. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a). On this

record, we cannot conclude that the district court’s charge was erroneous.

                We overrule Head’s fourth point of error.


       Notice

                In his fifth point of error, Head asserts that the district court abused its discretion

in admitting extraneous-offense evidence offered by the State during the punishment hearing.

According to Head, the State failed to provide reasonable notice of its intent to introduce extraneous-

offense evidence relating to crimes and bad acts that Head allegedly committed against

Kristopher Fischer, Christina Tabor, Tracy Parker, and Anna Cory, each of whom testified during

the punishment hearing.

                We review a trial court’s ruling regarding whether the State provided reasonable

notice of its intent to introduce extraneous-offense evidence for abuse of discretion. See Hayden

v. State, 66 S.W.3d 269, 271 (Tex. Crim. App. 2001); Castillo v. State, 186 S.W.3d 21, 33

(Tex. App.—Corpus Christi 2005, pet. ref’d). A trial court abuses its discretion when it acts

arbitrarily or unreasonably, without reference to any guiding rules or principles. Montgomery

v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990); Dixon v. State, 358 S.W.3d 250, 259

(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). We will not reverse a trial court’s decision

admitting evidence unless the decision is outside the “zone of reasonable disagreement.” See Moses

v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Castillo, 186 S.W.3d at 34.




                                                  18
               Article 37.07 of the Texas Code of Criminal Procedure governs the admissibility of

evidence during punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3. The statute provides

that “[o]n timely request of the defendant, notice of intent to introduce evidence under this article

shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence.” Id. art. 37.07,

§ 3(g). Under Rule 404(b), extraneous-offense evidence is admissible only if “reasonable notice

is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other

than that arising in the same transaction.” Tex. R. Evid. 404(b). The rule does not define what

constitutes “reasonable” notice. However, article 37.07 provides some guidance. For extraneous

offenses that have “not resulted in a final conviction in a court of record or a probated or suspended

sentence, 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.” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g). Additionally, the Texas Court of Criminal

Appeals has held that allowing a defendant access to the State’s “open file,” without more, does not

constitute reasonable notice. See Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995);

see also Roman v. State, 986 S.W.2d 64, 66 (Tex. App.—Austin 1999, pet. ref’d) (applying

Buchanan to article 37.07’s notice provision). What is considered reasonable notice depends on the

facts and circumstances of each case. See Hayden, 66 S.W.3d at 272-73 (Tex. Crim. App. 2001);

Webb v. State, 36 S.W.3d 164, 178 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); Patton

v. State, 25 S.W.3d 387, 392 (Tex. App.—Austin 2000, pet. ref’d).

               In this case, it is undisputed that Head timely requested and the district court

ordered the State to provide notice of its intent to introduce evidence of extraneous offenses no later

than 10 days prior to trial, which began on June 14, 2010. In its first written notice of intent to

introduce evidence of extraneous offenses, filed on June 4, 2010, the State made no mention of

                                                  19
any extraneous offenses involving victims Fischer, Tabor, Parker, and Cory. However, in its

second notice of intent to introduce evidence of extraneous offenses, filed on June 8, 2010, the State

specified that it intended to introduce evidence of an aggravated robbery committed on July 24,

2009, in Travis County, against Anna Cory. And, in its third notice of intent to introduce evidence

of extraneous offenses, filed on June 9, 2010, the State included the offense of aggravated robbery

committed on August 9, 2009, in Travis County, against Fischer, Parker, and Christina Arnold-Juhl,7

and the offense of aggravated assault committed on the same day and in the same county

against Fischer.

               Additionally, at the hearing on Head’s motion to exclude the extraneous-offense

evidence, the prosecutor represented that in a conversation with defense counsel on May 21, 2010,

he had discussed the offense involving Christina Tabor, informed counsel that Tabor’s last name

in the offense report was Arnold-Juhl and that the witness was referred to by the State as “the

bachelorette,” and explained some of the circumstances surrounding the offense. The prosecutor

further represented that in a separate conversation with defense counsel on May 26, he had informed

counsel of the name of the detectives who had investigated the offenses involving Tabor, Fischer,

and Parker and had mentioned the victims by name. Finally, the prosecutor represented that in

another conversation with defense counsel “prior to or on June 2,” the prosecutor went into

more detail regarding the offenses, the victims, and other witnesses involved in the case. As for the

separate extraneous offense involving Anna Cory, the prosecutor represented that the Austin Police

Department did not inform the District Attorney’s Office of the specific circumstances involving the

robbery of Cory until June 7, 2010. The prosecutor added, “But as soon as we were aware that this


       7
       Arnold-Juhl was the maiden name of Christina Tabor, who was married after the offense
was committed but prior to trial.

                                                 20
was an appropriate case to come in as a punishment circumstance, we brought it to the attention of

defense counsel and did so in a timely manner as best we could.”8 Indeed, the record reflects that

the following day, the State filed its second notice of intent to introduce evidence of extraneous

offenses, which included the offense involving Cory.

               On this record, we cannot conclude that the district court abused its discretion

in finding that Head had reasonable notice of the extraneous offenses. Regarding the offenses

involving Fischer, Tabor, and Parker, the district court could have impliedly found that although

written notice was not provided ten days prior to trial, defense counsel was given reasonable notice

of those offenses through multiple conversations with the prosecutor prior to or on June 2, 2010,

which was more than ten days prior to trial. See Hayden, 66 S.W.3d at 273 (observing that notice

need not be “formalistic” and does not have to be in writing, so long as actual notice is conveyed).

As for the offense involving Cory, the district court could have impliedly found that even though

neither written nor oral notice was provided ten days prior to trial, the State had reasonably notified

Head of the offense and the victim shortly after the State itself was informed of the circumstances

of the offense. See, e.g., Henderson v. State, 29 S.W.3d 616, 625 (Tex. App.—Houston [1st Dist.]

2000, pet. ref’d) (notice was reasonable when given immediately upon discovering new evidence,

which was eight days before evidence was introduced at trial); Patton, 25 S.W.3d at 394 (notice

was reasonable when State provided notice as soon as it learned of offense, even though notice was

not received by defendant until one day before trial); see also West v. State, No. 03-05-00371-CR,

2008 Tex. App. LEXIS 8599, 2008 WL 4899189, at *6 (Tex. App.—Austin Nov. 14, 2008,


       8
          As an officer of the court, an attorney’s statements on the record, even if unsworn, are
generally accepted as true unless the statements are objected to or disputed by opposing counsel. See
Holloway v. Arkansas, 435 U.S. 475, 486 (1978); Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim.
App. 1996).

                                                  21
pet. ref’d) (mem. op., not designated for publication) (notice given immediately upon discovering

new evidence was reasonable when given five days before trial).

               Moreover, even if the district court had abused its discretion in finding that the State

provided reasonable notice, we could not conclude on this record that the allegedly deficient notice

was harmful. See Tex. R. App. P. 44.2(b). The harm analysis in this context focuses on whether the

deficient notice resulted from prosecutorial bad faith or prevented the defendant from preparing

for trial. See Hernandez v. State, 176 S.W.3d 821, 824-26 (Tex. Crim. App. 2005); Roethel v. State,

80 S.W.3d 276, 282 (Tex. App.—Austin 2002, no pet.). Here, there is no allegation that the State

acted in bad faith. In fact, during the hearing, defense counsel remarked that the prosecutor had been

“very helpful” and “very cooperative in trying to help me get discovery.” Nor is there any indication

in the record that Head was prevented from preparing for trial. Head has made no showing, either

in the court below or on appeal, of how his defense strategy might have been different had the

State notified him earlier of its intent to introduce the extraneous-offense evidence. See Hernandez,

176 S.W.3d at 826. And Head did not seek a continuance of the punishment hearing, which

would be some evidence that the deficient notice affected his trial strategy. See McDonald v. State,

179 S.W.3d 571, 578-79 (Tex. Crim. App. 2005). Finally, the record reflects that in addition to the

multiple conversations defense counsel had with prosecutors concerning the extraneous offenses

at issue, written notice of the State’s intent to introduce evidence of those offenses was filed on

June 8 and June 9, 2010, which was approximately one week before the evidence was admitted at

the punishment hearing held on June 16 and 17. Defense counsel acknowledged at the hearing that

he had received “adequate” discovery in the case, and he made no claim that he was unprepared for

trial. On this record, even if the State’s notice had been deficient, we could not conclude that Head

was harmed by the deficiency. We overrule Head’s fifth point of error.

                                                 22
                                       CONCLUSION

              We affirm the judgments of the district court.




                                            ___________________________________________

                                            Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Field

Affirmed

Filed: April 24, 2013

Do Not Publish




                                              23
