                                 NO. 12-08-00080-CR

                        IN THE COURT OF APPEALS

           TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JASON ANDREW HOPE,                                §            APPEAL FROM THE 241ST
APPELLANT

V.                                                §            JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                          §            SMITH COUNTY, TEXAS


                                    MEMORANDUM OPINION
       Jason Andrew Hope appeals his conviction for sexual assault, a second degree felony. In
three issues, Appellant contends that the trial court erred in allowing evidence of extraneous offenses
to be introduced. We affirm.


                                           BACKGROUND
       Because Appellant raises no issues regarding the guilt-innocence portion of the trial, we will
only briefly outline the facts of the allegations against him. Appellant had several legal issues while
residing in Georgia. Specifically, he was arrested and charged with cocaine and marihuana offenses.
Rather than face trial in Georgia, Appellant moved to Texas and assumed a different identity. While
in Texas, Appellant befriended a family that had a young child. When that child was fifteen,
Appellant sexually assaulted her.
       Appellant was indicted for sexual assault. Before trial, Appellant requested notice of any
extraneous offenses the State intended to offer at trial. The State responded with a list of extraneous
offenses. The State did not disclose that Appellant had charges pending in Georgia for delivery of
cocaine, obstruction, and possession of marijuana, although it told Appellant immediately before trial
that he had warrants pending for those offenses.1 The State did not offer this information during the
guilt-innocence phase of the trial, and the jury found Appellant guilty as charged.
        The State notified Appellant’s counsel about the Georgia charges the morning of the
punishment phase of the trial. Appellant testified during the punishment phase that he had never
been convicted of a felony, making him eligible for a probated sentence.2 Appellant objected during
the State’s cross examination to questions about the Georgia charges on the basis that the State had
not given pretrial notice of those charges. The trial court overruled the objection, and the State asked
Appellant about the charges. At the conclusion of the punishment phase, the jury assessed
punishment at ten years of imprisonment and a fine of $5,000. The jury did not recommend that the
sentence or fine be probated. The trial court sentenced Appellant pursuant to the jury’s verdict. This
appeal followed.


                                                EXTRANEOUS OFFENSES
        In three issues, Appellant contends that the trial court erred in admitting evidence of
extraneous offenses because the State did not provide prior notice of its intent to utilize the evidence
at trial. Appellant does not contend that this evidence was substantively inadmissible extraneous
conduct, but instead focuses solely on the lack of notice from the State.3
        Article 37.07, section 3(g) provides in relevant part 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.” TEX . CODE CRIM . PROC. ANN . art. 37.07 § 3(g) (Vernon
Supp. 2008). Thus, article 37.07, section 3(g) incorporates by reference the manner of notice
required by Texas Rule of Evidence 404(b). See Jaubert v. State, 74 S.W.3d 1, 2 (Tex. Crim. App.
2002). Rule 404(b) provides in pertinent part as follows:




        1
            The obstruction charge was apparently filed after Appellant fled the state.

        2
            See T EX . C O D E C RIM . P RO C . A N N . art. 42.12 § 4 (d), (e) (Vernon Supp. 2008).

        3
            Because the parties do, we address these issues as though evidence of the Georgia charges was actually
admitted.

                                                                 2
         Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order
         to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such
         as proof of motive, opportunity, preparation, plan, knowledge, identity, or absence of mistake or
         accident, provided that upon timely request by the accused in a criminal case, 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) (emphasis added). Therefore, both article 37.07, section 3(g) and rule 404(b)
condition the admissibility of extraneous offense evidence on the State’s compliance with the notice
provision found in the rule. TEX . R. EVID . 404(b); Hernandez v. State, 176 S.W.3d 821, 824 (Tex.
Crim. App. 2005). However, the notice provision applies only to evidence introduced in the State’s
case in chief. Jaubert, 74 S.W.3d at 3. When the State presents extraneous offense evidence in
rebuttal or during cross examination, Appellant is not entitled to notice of the extraneous offenses.
Id. at 4.4
         Here, the State presented the extraneous offense evidence during its cross examination of
Appellant. Thus, the State did not violate the notice provisions of article 37.07, section 3(g) or rule
404(b). The trial court did not err by allowing the extraneous offense evidence, and Appellant’s first,
second, and third issues are overruled.


                                                      DISPOSITION
         The judgment of the trial court is affirmed.


                                                                             BRIAN HOYLE
                                                                                      Justice

Opinion delivered January 30, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)



         4
          The concurring opinion in Jaubert includes some excellent reasons for a prosecutor to give notice of
extraneous offenses even when it is not required. See Jaubert, 74 S.W .3d at 4–8 (Cochran, J., concurring).

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