AFFIRMED as MODIFIED and Opinion Filed April 21, 2020




                                    S  In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-18-01364-CR

                        CARLOS MEDRANO, Appellant
                                   V.
                       THE STATE OF TEXAS, Appellee

               On Appeal from the Criminal District Court No. 2
                            Dallas County, Texas
                     Trial Court Cause No. F-1240354-I

                         MEMORANDUM OPINION
                 Before Justices Bridges, Whitehill, and Nowell, III
                            Opinion by Justice Whitehill
      Appellant pled nolo contendere to indecency with a child by sexual contact

and waived his right to a jury trial. After hearing evidence, the trial court found him

guilty and placed him on seven years deferred adjudication community supervision

and required that he serve 120 days in jail as a condition to probation.

      In a single issue, appellant argues that the trial court erred by admitting

extraneous offense evidence because the State did not provide adequate notice.

      In two cross-issues, the State asks us to modify the deferred adjudication order

to reflect that the victim was ten years old when the offense occurred and appellant

pled “nolo contendere” rather than “guilty.”
      We conclude the trial court did not abuse its discretion by admitting the

extraneous offense evidence because, despite appellant’s TEX. R. EVID. 404(b)

objection the evidence was admissible under TEX. CODE CRIM. PROC. art. 38.37.

      We further conclude that the record supports the State’s requested

modifications.

      Accordingly, we modify the court’s deferred adjudication order, and as

modified, affirm.

                                  I. BACKGROUND

      In 2012, JD and her parents attended a New Year’s Eve party at appellant’s

home. While at the party, appellant attempted to penetrate JD’s vagina with his

fingers. JD was ten years old at the time.

      Appellant pled nolo contendere to indecency with a child by sexual contact

and waived his right to a jury trial. After hearing evidence, including JD’s testimony,

the trial court found appellant guilty and placed him on seven years deferred

adjudication community supervision. The court required that appellant serve 120

days in jail as a condition to probation.




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                                          II. ANALYSIS

A.       Did an insufficient notice render the extraneous evidence inadmissible?

         Appellant’s sole issue argues that the State’s extraneous offense notice was

inadequate and thus the trial court erred by overruling his objection to that evidence.

         The State’s notice of extraneous offenses advised that the State might

introduce evidence that “[t]he defendant, as a continuing course of conduct,

contacted the genitals of the complainant with his hand[.]” In a subsequent pretrial

motion, appellant’s counsel requested notice of the State’s intent to use extraneous

offenses pursuant to TEX. R. EVID. 404(b) and TEX. CODE CRIM. PROC. ANN. 37.07.1

         After JD testified about the 2012 incident, the State asked whether appellant

had ever tried to touch her before that time. Appellant’s counsel objected, “Judge,

I’m gonna object unless we have a 404(b) notice. When the State replied that notice

had been given, appellant’s counsel replied, “It would be my position notice is

insufficient.     It alleges a continuous course of conduct.”                 The objection was

overruled.

         We review the trial court’s decision to admit or exclude evidence, as well as

its decision as to whether the probative value of evidence was substantially

outweighed by the danger of unfair prejudice, under an abuse of discretion standard.


     1
     Article 37.07(g) provides that, “On 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.” See TEX. CODE CRIM. PROC. art. 37.07 §3(g).


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Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court does

not abuse its discretion unless its determination lies outside the zone of reasonable

disagreement. Id.

      Under rule 404(b), evidence of other crimes, wrongs, or bad acts is

inadmissible if it is offered to prove the character of a person in order to show action

in conformity therewith, but the evidence may be admissible for other purposes, such

as proof of motive, opportunity, intent, absence of mistake, or accident, or to rebut

a defensive theory. See TEX. R. EVID. 404(b).

      The State is required to give notice of its intent to introduce such evidence.

TEX. R. EVID. 404(b), and the notice must be “reasonable.” Hayden v. State, 66

S.W.3d 269, 272 (Tex. Crim. App. 2001). The notice requirement’s purpose is to

prevent surprise. Id. Whether a notice is “reasonable” turns on the facts and

circumstances of each case. Scott v. State, 57 S.W.3d 476, 480 (Tex. App.—Waco

2001, pet. ref’d).

      In this case, however, we need not consider whether the evidence was

admissible under rule 404(b) because the evidence was admissible under article

38.37. See TEX. CODE CRIM. PROC. art. 38.37.

      Article 38.37 allows the State to introduce evidence of any other crimes,

wrongs, or acts committed by the defendant against the victim of the offense that he

is on trial for in a prosecution for continuous sexual abuse of a young child for its

bearing on any relevant matters, including: (i) the defendant’s and victim’s state of
                                          –4–
mind and (ii) the previous relationship between them. See TEX. CODE CRIM. PROC.

art. 38.37§ 1(b); see also Dounley v. State, No. 05-19-00036-CR, 2020 WL 415930,

at *1 (Tex. App.—Dallas Jan. 27, 2020, no pet. h.) (mem. op., not designated for

publication). It also allows the State to introduce evidence of a separate offense for

relevant matters, including defendant’s character and acts performed in conformity

with his character.

      Before the State may introduce 38.37 evidence, it must provide notice to the

defendant at least thirty days before trial. See TEX. CODE CRIM. PROC. art 38.37 § 3;

see also Stubblefield v. State, No. 05-15-01124-CR, 2017 WL 343595, at *1 (Tex.

App.—Dallas Jan. 18, 2017, pet. ref'd) (mem. op., not designated for publication).

      Under Article 38.37 § 2, notwithstanding Texas Rules of Evidence 404 and

405, and subject to Article 38.37 § 2-a, evidence that a defendant has committed

certain offenses against a child may be admitted in the trial of a defendant for

indecency with a child “for any bearing the evidence has on relevant matters,

including the character of the defendant and acts performed in conformity with the

character of the defendant.” TEX. CODE CRIM. PROC. art. 38.37 §2(b); see Lara v.

State, 513 S.W.3d 135, 141 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

Article 38.37 supersedes the application of Rule 404(b), making extraneous offense

evidence admissible that Rule 404(b) would preclude. Hitt v. State, 53 S.W.3d 697,

705 (Tex. App.—Austin 2001, pet. ref'd); see Lara, 513 S.W.3d at 141.



                                         –5–
      Appellant did not request notice under article 38.37, nor did he object on this

ground. A request for notice under rule 404(b) and article 37.07 is not sufficient to

invoke the notice requirements of article 38.37. .Avery v. State, No. 05-02-00735-

CR, 2004 WL 78042, at *3 (Tex. App.—Dallas Jan. 20, 2004 pet. ref’d) (mem. op.,

not designated for publication). And as we have noted, in cases in which it applies,

article 38.37 supersedes Rule of Evidence 404. See Martines v. State, 371 S.W.3d

232, 246 (Tex. App.—Houston [1st Dist.] 2011, no pet).

      Consequently, the evidence was admissible under article 38.37 regardless of

the adequacy of the State’s rule 404(b) notice. Avery 2004 WL 78042, at *3; cf.

Muniz–Luna v. State, No. 03–09–00266–CR, 2010 WL 3810820, at *5 (Tex. App.–

Austin Sept. 30, 2010, pet. ref’d) (mem. op., not designated for publication) (holding

that appellant failed to preserve request for limiting instruction when evidence was

admissible under article 38.37 and counsel had only objected and requested

instruction under rule 404(b)); see also Hitt v. State, 53 S.W.3d 697, 704–705 (Tex.

App.—Austin 2001, pet. ref’d).

      Appellant’s sole issue is resolved against him.

B.    Should the Court’s order be modified?

      The deferred adjudication order states that appellant pled “not guilty,” and

includes the notation “n/a” in the space provided for the victim’s age. But the record

reflects that appellant pled nolo contendere and JD was ten years old when the

offense occurred.
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      We are authorized to reform a judgment to make the record speak the truth

when we have the necessary information to do so. Bigley v. State, 865 S.W.2d 26,

27 (Tex. Crim. App. 1993). We therefore sustain the State’s first and second issues

and modify the court’s order accordingly.

                                III. CONCLUSION

      We sustain the State’s cross-issues and modify the court’s order to reflect that

appellant pled nolo contendere and the victim was ten years old when the offense

occurred. As modified, we affirm the trial court’s order.




                                            /Bill Whitehill/
                                            BILL WHITEHILL
                                            JUSTICE




Do Not Publish
TEX. R. APP. P. 47.2(b)
181364F.U05




                                        –7–
                                   S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                  JUDGMENT

CARLOS MEDRANO, Appellant                     On Appeal from the Criminal District
                                              Court No. 2, Dallas County, Texas
No. 05-18-01364-CR          V.                Trial Court Cause No. F-1240354-I.
                                              Opinion delivered by Justice
THE STATE OF TEXAS, Appellee                  Whitehill. Justices Bridges and
                                              Nowell participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED to reflect that the victim was ten years old when the offense occurred
and appellant pled “nolo contendere” rather than “guilty.”

As REFORMED, the judgment is AFFIRMED.


Judgment entered April 21, 2020




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