                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00390-CR


AARON CLARK WHAM                                                      APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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       FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY

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                         MEMORANDUM OPINION1
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                                   I. Introduction

      Appellant Aaron Clark Wham appeals his 365-day jail sentence assessed

by the trial court after a jury convicted him of committing assault-family violence.

In two issues, Appellant asserts that the trial court reversibly erred by allowing

the State to admit extraneous bad acts evidence against him in the punishment

phase when the State had not given proper notice of the acts, as required by



      1
       See Tex. R. App. P. 47.4.
article 37.07, section 3(g) of the code of criminal procedure. See Tex. Code

Crim. Proc. Ann. art. 37.07, ' 3(g) (West Supp. 2010). We affirm.

                    II. Factual and Procedural Background

      On February 4, 2009, Appellant filed a pretrial request for notice of the

State‘s intent to introduce against him ―evidence of an extraneous crime or bad

act at the punishment phase of trial,‖ pursuant to article 37.07, section 3(g). On

June 16, 2009, the State notified Appellant in writing that it intended to offer

evidence of ―Previous Acts of Violence against [the complainant].‖

      On November 9, 2009, Appellant pleaded not guilty to Class A

misdemeanor assault against his wife, and a jury trial ensued. Viewed in the light

most favorable to the verdict,2 the evidence reveals that in the early morning

hours of January 1, 2009, Appellant and his wife, the complainant, resumed an

argument they had started the night before.          During the argument, the

complainant stood diagonally from Appellant, who was sitting on the couch and

―very intoxicated.‖ Suddenly, Appellant stood up, reared his head back, and

struck the complainant over her left eye with the top of his head.            The

complainant‘s laceration began bleeding profusely, and she drove to the hospital

and received seven stitches.     The jury found Appellant guilty of assault as

alleged in the information.



      2
        See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Because
Appellant does not challenge the sufficiency of the evidence, we only briefly set
forth the evidence presented at trial.

                                        2
      Appellant elected to have the trial court assess punishment.               The

complainant and her mother testified for the State, and their testimony is

discussed below.3 Appellant‘s counsel cross-examined both witnesses but did

not present a separate case-in-chief. In closing argument, Appellant‘s counsel

emphasized that Appellant had a problem with alcohol and asked the trial court

to assess some form of alcohol counseling as a condition of community

supervision, or in the alternative, assess ―substantially less than 365 days.‖ The

State asked the trial court to ―consider the victim‘s safety in this and assess the

maximum punishment.‖ The trial court assessed punishment at 365 days in the

county jail and sentenced Appellant accordingly.

                                  III. Discussion

      In his first issue, Appellant asserts that the trial court erred by allowing the

State to introduce extraneous bad acts evidence against him in the punishment

phase when it had not given proper notice of any extraneous bad acts, as

required by article 37.07, section 3(g) of the code of criminal procedure. In his

second issue, Appellant asserts that the trial court‘s error was harmful and

requires that he receive a new punishment trial.

      The State does not address the sufficiency of its notice, arguing instead (1)

that Appellant waived any error ―on most, if not all, of the alleged errors‖ and (2)


      3
        The State also introduced Appellant‘s prior judgments, reflecting three
convictions for burglary of a motor vehicle, one conviction for criminal mischief,
one conviction for burglary of a building, two convictions for delivery of a
controlled substance, and one conviction for driver‘s duty on striking highway
fixtures.

                                          3
that, ―[w]ithout conceding error as to the sufficiency of the State‘s notice,‖ any

error was harmless.

A. Extraneous Offense Evidence in the Punishment Phase

      Article 37.07, section 3(a) of the code of criminal procedure provides in

pertinent part,

      [E]vidence may be offered by the state and the defendant as to any
      matter the court deems relevant to sentencing, including . . .
      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.

Id. art. 37.07, ' 3(a). Article 37.07, section 3(g) provides:

             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. 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.4

Id. art. 37.07, ' 3(g) (emphasis added).

      The purpose of the notice provision is to avoid unfair surprise and to

enable a defendant to prepare to answer the extraneous offense evidence. See

Burling v. State, 83 S.W.3d 199, 202–03 (Tex. App.—Fort Worth 2002, pet.

ref‘d); see also Wallace v. State, 135 S.W.3d 114, 120 (Tex. App.—Tyler 2004,

      4
       Rule 404(b) provides in relevant part that other-crimes evidence may be
admissible for limited, non-character conformity purposes provided that the
prosecution gives the accused reasonable notice in advance of trial of its intent to
use this evidence during its case-in-chief. Tex. R. Evid. 404(b).

                                           4
no pet.). Courts have carved out exceptions to the rule so that the notice need

not specify exact counties. See Nance v. State, 946 S.W.2d 490, 493 (Tex.

App.—Fort Worth 1997, pet. ref‘d) (holding that section 3(g) was satisfied by

State‘s notice listing city and state); see also Wallace, 135 S.W.3d at 120.

Courts have also given the State leeway in specifying exact dates. Wallace, 135

S.W.3d at 120; Burling, 83 S.W.3d at 203 (holding that variation of six weeks

between date alleged in notice and that presented at trial is reasonable). We

review a trial court‘s decision to admit extraneous offense evidence for abuse of

discretion. See Sanders v. State, 191 S.W.3d 272, 276 (Tex. App.—Waco 2006,

pet. ref‘d), cert. denied, 549 U.S. 1167 (2007); Owens v. State, 119 S.W.3d 439,

444 (Tex. App.—Tyler 2003, no pet.); see also McDonald v. State, 179 S.W.3d

571, 576 (Tex. Crim. App. 2005) (applying abuse of discretion standard to a rule

404(b) notice challenge). In the absence of reasonable notice, however, a trial

court abuses its discretion by admitting extraneous offense evidence. Roethel v.

State, 80 S.W.3d 277, 283 (Tex. App.—Austin 2002, no pet.).

B. Preservation of Error

      To preserve a point for appellate review, a party must have presented to

the trial court a timely objection stating the specific grounds for the ruling sought,

unless the specific grounds were apparent from the context. Tex. R. App. P.

33.1(a)(1); see Berry v. State, 233 S.W.3d 847, 856–57 (Tex. Crim. App. 2007).

Further, the trial court must have ruled on the objection, either expressly or

implicitly, or the complaining party must have objected to the trial court‘s refusal

to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex.
                                          5
Crim. App. 2004). Here, Appellant focuses on five instances in which he alleges

that the trial court improperly admitted extraneous bad acts evidence. We will

address each instance in turn.

      1. Testimony of the Complainant’s Mother

      In this instance, the State asked the complainant‘s mother, Luann

 McCormick, ―Has this been the first incident of violence against your

 daughter?‖5    Appellant immediately objected that he had not gotten proper

 404(b) notice, and the State responded, ―Our 404(b) notice included prior acts

 of violence against [the complainant].‖ Appellant‘s counsel replied,

             And that‘s true, Your Honor, but without specificity as to dates,
      times, possible locations, it‘s impossible for the Defense to prepare
      for such an accusation. I believe the 404(b) notice the State
      provided just simply said prior acts of violence against [the
      complainant]. It did not list a county, it did not list an offense date, or
      ―on or about‖ language, or anything to put the Defense on notice.6

 The trial court overruled the objection, and McCormick testified that Appellant

 took the spark plugs out of the complainant‘s car so she could not drive and

 smashed the car windows. She also testified that Appellant ―would get in [the




      5
       Appellant and the complainant had been married approximately five and a
half years at the time of the November 2009 trial.
      6
       Although Appellant referenced rule 404(b) rather than article 37.07,
section 3(g), he discussed the substance of article 37.07, and his written notice
request cited article 37.07, section 3(g). The record indicates that the trial court
understood Appellant was referring to article 37.07 notice. Thus, Appellant‘s
objection was sufficiently specific. See Apolinar v. State, 106 S.W.3d 407, 414
(Tex. App.—Houston [1st Dist.] 2003) (reaching similar conclusion), aff’d on other
grounds, 155 S.W.3d 184 (Tex. Crim. App. 2005).

                                          6
 complainant‘s] face . . . it was a –– a very confrontational, face-to-face-type

 thing.‖ During McCormick‘s testimony, the trial court stated,

      [B]ecause there was an objection as to any other abuse as to [the
      complainant], and I didn‘t hear anything of that nature. So after
      hearing that, I‘m — I‘m going to sustain the Defense‘s objection to
      that and not consider the answer to that one question, because it
      was — anyway, I didn‘t hear anything. I just want to make sure the
      record is clear about that, and the Court has not considered any
      other acts of violence against [the complainant] because I didn‘t hear
      anything.

 Because the trial court sustained Appellant‘s objection, Appellant did not obtain

 an adverse ruling upon which to complain on appeal. See Geuder v. State, 115

 S.W.3d 11, 13 (Tex. Crim. App. 2003) (holding that an objection must be timely,

 specific,   pursued   to   an   adverse     ruling,   and   with   two   exceptions,

 contemporaneous).       Because the trial court provided Appellant with the

 requested relief, nothing is preserved for review.

      2. The Complainant’s Testimony

             a. The Cruise Ship

      During this exchange, the State asked the complainant, ―About how soon

after y‘all started dating did things turn physical, in terms of any physical acts of

violence against you?‖ Without objection, the complaint testified that she and

Appellant had taken a cruise in 2004 or 2005 and that one night she found

Appellant ―passed out on the deck.‖          When the complainant tried to wake

Appellant, he jumped up and threw her against the wall, and she almost fell over

the boat‘s railing. The complainant testified, ―He got me cornered on the wall.




                                         7
He was choking me. Some random guy had to pull him off of me, and eventually,

the police officers on the cruise ship took him away.‖

      Appellant asserts that because he had objected to similar testimony earlier

and because trial was to the court, he did not have to repeat his objection in light

of rule of evidence 103(a)(1). See Tex. R. Evid. 103(a)(1) (―When the court

hears objections to offered evidence out of the presence of the jury and rules that

such evidence be admitted, such objections shall be deemed to apply to such

evidence when it is admitted before the jury without the necessity of repeating

those objections.‖). Appellant cites no authority in support of his argument that

rule 103(a)(1) applies to bench trials. Moreover, the trial court sustained his

previous objection, and the subject matter of the complainant‘s testimony differed

from her earlier testimony. Thus, Appellant waived any complaint on appeal by

not objecting. See Mendez, 138 S.W.3d at 342.

            b. The Hotel

      Here, the State asked the complainant when ―the next physical act

occurred,‖ and she responded that one summer she and Appellant had rented

adjoining hotel rooms with her sister and her sister‘s husband.          When the

complainant testified, ―I heard [Appellant] talking about wanting to get some coke.

And —,‖ the following dialogue occurred:

            [Defense Counsel]: I‘m going to object, Your Honor, first, to
      404(b), any kind of mention of illicit drug or drug use. There‘s
      nothing in the 404(b) notice about that.

            THE COURT: Okay.



                                         8
            [Defense Counsel]: Secondly, I would renew my objection I
      made to the prior witness, about prior acts of violence of [the
      complainant] not being specifically defined or laid out in the 404(b)
      notice.

               THE COURT: And I‘ll sustain the objection as to the coke, the
      drugs.

               [State]: But the prior acts of violence are still okay to go into?

               THE COURT: Yes.
               ....

               Q. [State]: [D]id y‘all get into an argument?

           A. [Complainant]: We got into an argument. We went back —
      we went back over to our room. We were arguing.

             [Defense Counsel]: May I have a running objection, Your
      Honor, to any further acts so that I don‘t — if they go into any further
      acts, I don‘t want to have to keep objecting.

               THE COURT: On this occasion, yes.

               [Defense Counsel]: Just for this witness, Judge?

               THE COURT: Yes, for this occasion.

            [Defense Counsel]: But we can consider the prior ruling
      overruled? As to prior acts of violence, my objection to that under
      404(b) was overruled?

               THE COURT: Yes. Yes. Yes.

               [Defense Counsel]: Thank you, Your Honor.

               THE COURT: As to this one occurrence.

The complainant then testified that Appellant was not ―so much physical with

[her]. He tried to keep [her] from leaving the room.‖ The complainant further

testified that she eventually left the room but that when she returned, ―[t]he room

was a mess. There was blood on the sheets. The phone was broke. It was just
                                            9
like a bomb went off in there.‖ At this point, the trial court interposed, ―[I] want to

make the record clear from what I‘ve just heard, I didn‘t hear any prior acts of

violence against her, so the Court‘s not considering that. . . . The last incident

that I just heard.‖ Because the trial court, acting as the factfinder, specifically

stated that he did not hear any evidence regarding prior acts of violence in this

instance, Appellant has no complaint on appeal that the trial court abused its

discretion by considering such evidence.

             c. The Neighbor’s Home

      In this exchange, the State asked the complainant whether Appellant had

physically confronted her after the hotel incident but before the most recent

offense. The complainant responded, ―Yes . . . There‘s been two,‖ and when the

State asked the complainant to describe the first incident, defense counsel

stated, ―Same objection to 404(b), about lack of specificity in the notice the State

provided.‖ The trial court overruled the objection ―temporarily,‖ explaining that it

would hear the evidence and then rule. The complainant proceeded to testify

that she and Appellant went to a party at a friend‘s house in the summer of 2008,

that Appellant got ―very drunk,‖ and that she had to drive him home. In the car,

Appellant yelled at her and told her to let him out of the car. When Appellant

opened the passenger side door, the complainant stopped, and Appellant got out

of the car. Back at home, the complainant asked a neighbor to find Appellant

and pick him up. When the neighbor arrived with Appellant, Appellant pushed

the complainant and told her he was going to kill her. The neighbor had to pull

Appellant off of the complainant.
                                          10
      The State asserts that Appellant failed to preserve error because he did

not reurge his objection and because the trial court did not make a final ruling.

See Mendez, 138 S.W.3d at 341.           Appellant asserts that the trial court‘s

―temporary‖ ruling operated as a final decision because the testimony ―could not

conceivably bear on whether admission of the testimony would violate the

‗procedural‘ notice requirements of [a]rticle 37.07, section 3(g).‖ Appellant did

not present this argument to the trial court. To the extent Appellant argues that

the trial court implicitly overruled his objection, we disagree.      Cf. Ramirez v.

State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991) (holding that trial court‘s

unqualified directive to ―Let [the witness] answer the question‖ constitutes an

implicit adverse ruling which preserves error). Here, the trial court specifically

made a ―temporary‖ ruling. Because Appellant did not obtain a definitive adverse

ruling, he waived his complaint that the trial court abused its discretion by

admitting this testimony.    See id. (holding that an adverse ruling must be

―conclusory,‖ that is, ―it must be clear from the record the trial judge in fact

overruled the defendant‘s objection or otherwise error is waived‖).

            d. The Complainant’s Apartment

      In this instance, the State asked the complainant about an August 23,

2009 incident, which occurred after the assault for which Appellant was on trial.

Following the complainant‘s testimony that ―one night she and her children were

in their apartment,‖ the following dialogue occurred:

            [Defense Counsel]: I‘m going to object again, Your Honor,
      under 404(b), lack of specificity about this incident.

                                        11
            THE COURT: Okay. It‘s a filed case, though.

            [Defense Counsel]: Yes, Your Honor, but the State didn‘t give
      me any notice about their intent to use it in any kind of punishment
      here before the Court today, or the case in chief.

            THE COURT: Okay. But you knew there were prior offenses,
      and you knew that there was a case pending against your client.

             [Defense Counsel]: I didn‘t for – I will – I did know that he was
      arrested, bonded out, and the case was in Intake. I didn‘t know it
      had been filed until today, Your Honor. But I did know there was a
      case in the District Attorney‘s file. The District Attorney had the case
      in their Intake Department. I didn‘t know it was filed until – it was
      either Your Honor or the DA told me that today, that it was – that it‘s
      been filed.

            THE COURT: But you were aware that he had been arrested
      and charged?

           [Defense Counsel]: I was well aware of the charges, yes, your
      Honor. I was not aware of the State‘s intent to use that in
      Punishment.

            THE COURT: So your client was full[y] aware of the charges
      against him?

            [Defense Counsel]: I assume he was, yes. I mean, he was
      arrested for them, so I would assume he was.

            THE COURT: Okay. I‘ll overrule the objection.

      The complainant then testified that around 10:30 p.m. on August 23, 2009,

she had been sitting outside on her second-floor balcony when she saw

Appellant outside her apartment. When the complainant went inside, she found

Appellant on the first floor. He appeared to be intoxicated, and he was mumbling




                                        12
that he wanted to see their two children.7 When the complainant told Appellant to

leave, he raised his hand and moved toward her. ―And the next thing I kn[e]w, I

was on the ground, my tooth had come out, and I had a scratch on my chin.‖

The complainant testified that Appellant was gone by the time she got up, that

she called the police, and that she filed charges against Appellant.

      The State asserts generally that Appellant waived any error because he

failed to renew his objection or request a running objection at any time during the

complainant‘s testimony about this incident.     See Geuder, 115 S.W.3d at 13

(holding that an objection must be made each time inadmissible evidence is

offered unless the complaining party obtains a running objection or requests a

hearing outside the jury‘s presence); Ethington v. State, 819 S.W.2d 854, 859–60

(Tex. Crim. App. 1991) (holding that appellant did not preserve error because he

did not object to the witness‘s continued detailed testimony regarding extraneous

robbery).   Appellant contends that he ―lodge[d] a valid objection to all the

testimony he deem[ed] objectionable on a given subject at one time out of the

jury‘s presence,‖ an option sanctioned in Ethington, 819 S.W.2d at 859.

      The record demonstrates that the trial court and both parties understood

Appellant to be objecting to the trial court‘s consideration of the August 2009

assault in its entirety. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App.

2009) (―To avoid forfeiting a complaint on appeal, the party must ‗let the trial


      7
       At that time, the couple‘s divorce was pending, and the complainant had
custody of their two children. Although Appellant had visitation rights, this was
not a scheduled visit.

                                        13
judge know what he wants, why he thinks he is entitled to it, and to do clearly

enough for the judge to understand him at a time when the judge is in the proper

position to do something about it.‘‖) (quoting Lankston v. State, 827 S.W.2d 907,

909 (Tex. Crim. App. 1992)). A running objection was not needed because, as

construed in context, the trial court‘s ruling applied globally to all testimony

related to the August 2009 assault, which the complainant described succinctly.

The complainant testified to background information between the objection and

her description of the assault.   After describing the assault, the complainant

testified that she called the police and that charges were filed against Appellant.

The State does not specify a point at which Appellant waived error by not

reurging his objection. Cf. Ethington, 819 S.W.2d at 859–60 (holding that when

counsel objected ―only to the first question‖ and there were three more pages of

questions and answers on the same subject, ―[i]t is clear from the context of this

testimony further objection was necessary in some form‖). We conclude that

Appellant properly preserved error in this instance. Because Appellant did not

preserve error as to his complaints regarding the other bad acts evidence, the

remainder of our analysis relates only to this August 2009 incident.

C. Sufficiency of the Notice

      Although the State does not directly address the sufficiency of its notice, it

acknowledges in the context of the August 2009 incident that a defendant‘s

awareness that the State filed assault charges against him is not equivalent to




                                        14
article 37.07, section 3(g) notice.8 See Graves v. State, No. 02-05-00430-CR,

2006 WL 3114451, at *3, *7 (Tex. App.—Fort Worth Nov. 2, 2006, no pet.) (mem.

op., not designated for publication) (citing Hernandez v. State, 176 S.W.3d 821,

824 (Tex. Crim. App. 2005)); Sarringar v. State, No. 02-02-00102-CR, 2003 WL

861698, at *4 (Tex. App.—Fort Worth Mar. 6, 2003, pet. ref‘d) (mem. op., not

designated for publication) (―Article 37.07, section 3(g) mandates that the State

provide timely notice, not of the existence of extraneous offenses, but of its intent

to offer such evidence.‖); see also Loredo v. State, 157 S.W.3d 26, 28 & n.3

(Tex. App.—Waco 2004, pet. ref‘d) (holding that an open file policy cannot

substitute for a request for notice of State‘s intent to use extraneous bad acts

evidence).

      The State also acknowledges that any article 37.07, section 3(g) notice

regarding a pending case against Appellant was required to include the date,

county, and name of the alleged victim to be considered reasonable. Because

the State‘s notice of intent to offer evidence of ―Previous Acts of Violence against

[the complainant]‖ did not list specific acts of violence or any associated dates or

counties, the State‘s notice was insufficient. See Tex. Code Crim. Proc. Ann. art.

37.07, ' 3(g); Roethel, 80 S.W.3d at 280–81 (holding State‘s notice

unreasonable when it stated generally that appellant committed aggravated


      8
       The court of criminal appeals has held, however, that ―under some
circumstances, when delivered shortly after a defendant‘s request, witness
statements that describe uncharged misconduct can constitute reasonable notice
[under Rule 404(b)].‖ McDonald, 179 S.W.3d at 576 (citing Hayden v. State, 66
S.W.3d 269, 272 (Tex. Crim. App. 2001)).

                                         15
sexual assault of his sister when she was a child); James v. State, 47 S.W.3d

710, 714 (Tex. App.—Texarkana 2001, no pet.) (holding that notice lacking ―even

a general statement about the time the acts occurred‖ was inadequate); Brown v.

State, No. 02-03-00307-CR, 2004 WL 1067774, at *2 (Tex. App.—Fort Worth

May 13, 2004, no pet.) (mem. op., not designated for publication) (holding that

when no date is alleged in the State‘s notice, the notice is unreasonable).

D. Abuse of Discretion

      Article 37.07, section 3(g) does not discuss the consequences of the

State‘s failure to provide the required notice, but ―[t]he logical and proper

consequence of violations of section 3(g) is that the evidence is inadmissible.‖

Roethel, 80 S.W.3d at 281; see Camacho v. State, No. 04-06-00713-CR, 2007

WL 3270766, at *3 (Tex. App.—San Antonio Nov. 7, 2007, no pet.) (mem. op.,

not designated for publication) (holding that the State‘s notice of extraneous acts

was unreasonable and that therefore admission of the evidence was error).

Because the State did not provide Appellant with proper notice, the trial court

abused its discretion in overruling Appellant‘s objection and allowing the State to

introduce evidence regarding the August 2009 assault. See Roethel, 80 S.W.3d

at 281; James, 47 S.W.3d at 714; see also Brown, 2004 WL 1067774, at *2.

Accordingly, we sustain this portion of Appellant‘s first issue.

E. Harm Analysis

      We must next determine whether the error was harmful. ―The admission of

an extraneous offense into evidence during the punishment phase when the

State failed to provide notice required by statute is non-constitutional error.‖
                                         16
Gonzalez v. State, 337 S.W.3d 473, 485 (Tex. App.—Houston [1st Dist.] 2011,

pet. ref‘d); Ruiz v. State, 293 S.W.3d 685, 695 (Tex. App.—San Antonio 2009,

pet. ref‘d); see McDonald, 179 S.W.3d at 578 (assessing harm for failure to give

notice under rule 404(b) in accordance with rule of appellate procedure 44.2(b));

Hernandez, 176 S.W.3d at 825 (analyzing harm in failure to provide 404(b) notice

under rule 44.2(b) and ―find[ing] helpful‖ the article 37.07, section 3(g) test for

harm set forth in Roethel).9     An appellate court may reverse a judgment of

punishment based on a non-constitutional error only if that error affected the

defendant‘s substantial rights. 10 Tex. R. App. P. 44.2(b).

      To determine harm in light of the purpose of article 37.07, section 3(g)—to

avoid unfair surprise and enable the defendant to prepare to answer the

extraneous misconduct evidence—we must analyze whether and how the notice

deficiency affected the appellant‘s ability to prepare for the evidence. Apolinar,

106 S.W.3d at 414; Roethel, 80 S.W.3d at 281–82; Graves, 2006 WL 3114451,

at *5. Specifically, we examine the record to determine whether the deficient

notice resulted from prosecutorial bad faith or prevented the defendant from

preparing for trial. Roethel, 80 S.W.3d at 282. In determining the latter, we will

      9
       The court of criminal appeals‘s reasoning is applicable here because rule
404(b) is incorporated by reference into the provisions of article 37.07, section
3(g) of the code of criminal procedure. See Gonzalez, 337 S.W.3d at 485
(applying harm standard articulated in Hernandez to analyze harm under article
37.07, ' 3(g)).
      10
         ―A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury‘s verdict.‖ King v. State, 953
S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328
U.S. 750, 776 (1946)); Gonzalez, 337 S.W.3d at 485.

                                         17
look at whether the defendant was surprised by the substance of the testimony

and whether that affected his ability to prepare cross-examination or mitigating

evidence.11 Id. ―A defendant may demonstrate surprise by showing how his

defense strategy might have been different had the State explicitly notified him

that it intended to offer the extraneous-offense evidence.‖12 Allen v. State, 202

S.W.3d 364, 369 (Tex. App.—Fort Worth 2006, pet. ref‘d) (discussing rule 404(b)

notice and citing Hernandez, 176 S.W.3d at 826). Error in admitting evidence in

violation of a notice requirement does not have an ―injurious‖ effect on the verdict

if the defendant was not surprised by the evidence. Hernandez, 176 S.W.3d at

825 (holding that evidence admitted in violation of rule of evidence 404(b)‘s

notice requirement is not harmful error if defendant not surprised by evidence);

Roethel, 80 S.W.3d at 281–82.

      In his opening brief, Appellant asserts that the trial court‘s punishment

decision was ―substantially swayed‖ by the ―erroneous admission into evidence,

and subsequent consideration of, the testimony elicited by the State concerning

Defendant‘s alleged commission of extraneous acts of violence against [the

complainant].‖ See Kotteakos, 328 U.S. at 765 (―[I]f one cannot say, with fair

assurance . . . that the judgment was not substantially swayed by the error, it is


      11
        Appellant does not assert that the State acted in bad faith, and our harm
analysis is not based on that component of the Roethel test.
      12
       As Appellant points out, however, the burden to demonstrate whether the
appellant was harmed by a trial court error does not rest on either party. See
Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Umoja v. State, 965
S.W.2d 3, 11–12 (Tex. App.—Fort Worth 1997, no pet.).

                                        18
impossible to conclude that substantial rights were not affected.‖).        In support,

Appellant cites to the trial court‘s statements at sentencing:

              Looking over the criminal history that I‘ve been given here,
      you – you have – you had some serious issues here at the start of
      this century. Three convictions for violation – or burglary of a
      vehicle, one for criminal mischief, a felony for burglary, and two
      felonies for delivery of a controlled substance. Then you came back
      in, in ‘07, with the striking an unattended vehicle offense. You were
      placed on probation there, and then I heard that revocation in
      August. And then after that is when you‘re accused of an additional
      assault against this same victim in this case. There‘s some serious
      issues here in my mind. Looks like there‘s some alcohol issues. . . .
      [S]entence of 365 days.

As a sister court has explained, however, ―focusing on the degree of prejudice

created by the erroneous admission of the evidence is a different harm analysis

employed for violations of the rules of evidence concerning relevancy, and is not

appropriate here where our inquiry is limited to the harm caused by the State‘s

inadequate notice.‖ Camacho, 2007 WL 3270766, at *4 (citing Hernandez, 176

S.W.3d at 824–25); see Roethel, 80 S.W.3d at 281–82 (explaining same);

Graves, 2006 WL 3114451, at *5–6. Thus, we do not consider the trial court‘s

comments in assessing harm in this instance.

      In his reply brief, Appellant asserts that ―[g]iven the nature of virtually all of

the testimony erroneously admitted by the Trial Court, Defense counsel would

have had no way of ‗knowing‘ whether the State knew about these alleged

events, much less whether the State knew about them and intended to introduce

testimony concerning them into evidence.‖          As to the August 2009 assault,

however, the record demonstrates otherwise.



                                          19
       On September 25, 2009, Appellant filed a motion for continuance asking

that his October 2, 2009 trial setting be continued to a later date and explaining

that

              Defendant was arrested for the offense of Assault Causes
       Bodily Injury/Family Violence on or about September 24, 2009. In
       the interest of justice, Attorney respectfully requests additional time
       to prepare to defend against the new allegations in a potential
       punishment phase at trial.13

The trial court granted Appellant‘s motion, and trial began on November 9, 2009.

When the State introduced evidence of the August 2009 assault, Appellant‘s

counsel explained to the trial court that he was ―well aware of the charges‖ but

that he was ―not aware of the State‘s intent to use that in Punishment.‖

       It ―strains credulity,‖ however, to think that Appellant was surprised by the

substance of the complainant‘s testimony or that the lack of formal notice

affected his ability to prepare for cross-examination, defend against her

testimony, or to present mitigating evidence. See Hernandez, 176 S.W.3d at 826

(holding that ―it strains credulity‖ to think that the defendant ―was not on notice

that the State intended to use his six recorded statements as part of its evidence

or that he had not prepared to defend against their use.‖). Although Appellant

asserts that, had he been provided notice, ―he would have been enabled to

investigate, and to acquire rebuttal witnesses (other than Defendant),‖ trial court

documents demonstrate that, as to the August 2009 incident, Appellant

requested (and was granted) a continuance of approximately one month for

       13
          This motion was filed approximately three months after the State had
filed its article 37.07, section 3(g) notice.

                                         20
these purposes.    That Appellant was not surprised by the substance of the

complainant‘s testimony is further supported by the fact that Appellant did not

request a continuance or even a short recess to prepare for cross-examination.

Cf. Graves, 2006 WL 3114451, at *6, *7 n.15 (concluding that Graves was

harmed by insufficient extraneous offense notice in part because counsel

specifically requested that his cross-examination of the witness be postponed

until he had obtained his notes and files); see McDonald, 179 S.W.3d at 578

(concluding in part that no harm resulted from lack of notice because if defendant

had been legitimately surprised, he could have requested a continuance).

Although Appellant did not cross-examine the complainant about the August

2009 assault, this seems to have been consistent with his apparent trial strategy

in the punishment phase to blame his actions to a large extent on his issues with

alcohol.   In closing argument, Appellant asked to be placed on community

supervision, stating that ―if anything, I think everybody agreed that alcohol has

been a problem in this marriage‖ and that alcoholism ―is something this Court

routinely curtails in people through the use of probation and terms and conditions

of said probation.‖ It is difficult to imagine, and Appellant does not explain, how

his defense strategy might have been different had the State formally notified him

that it intended to offer the August 2009 extraneous bad act during punishment.

Thus, we conclude that the error in admitting the extraneous bad acts evidence

without sufficient article 37.07, section 3(g) notice was harmless, and we overrule

Appellant‘s second issue. See Tex. R. App. P. 44.2(b).



                                        21
                                 IV. Conclusion

      Having sustained Appellant‘s first issue in part but having overruled his

second issue, we affirm the trial court‘s judgment.



                                                      ANNE GARDNER
                                                      JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

WALKER, J. concurs without opinion.

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

DELIVERED: September 22, 2011




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