                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00424-CR

THOMAS HENRY SINCLAIR,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 13th District Court
                             Navarro County, Texas
                            Trial Court No. 33805-CR


                          MEMORANDUM OPINION


      The jury convicted Thomas Henry Sinclair of the offense of assault and assessed

his punishment at one year confinement in the county jail and a $4,000 fine. On April

24, 2014, this Court issued an opinion affirming Sinclair’s conviction. Sinclair filed a

petition for discretionary review with the Court of Criminal Appeals. The Court of

Criminal Appeals vacated the April 24 judgment of this Court and remanded the cause.

We affirm.
                                    Background Facts

         Sinclair operates Wispers nightclub, and Fernando Ramirez was a patron at the

nightclub. Ramirez paid for private dances at the nightclub, and he went with a dancer

to the VIP room. The dancer testified that Ramirez requested her to perform sex acts,

which she refused, and she left the VIP room. Ramirez went to Sinclair requesting a

refund, but Sinclair refused to give the refund.

         Sinclair testified that Ramirez took a swing at him and threw things at him.

Sinclair struck Ramirez with a sjambok, a type of whip. Jeff Ballew, the DJ at Wispers,

then came and yanked Ramirez by the collar backwards to the ground. Some patrons of

the nightclub dragged Ramirez out of the nightclub and into the parking lot by his feet.

Ramirez was taken to a local hospital where he was pronounced dead. The medical

examiner testified that Ramirez died from blunt force head injuries. Ramirez had an

“abrasive contusion” on the back of his head consistent with his head hitting a hard,

rough surface.

                                   Extraneous Offense

         In the third issue on appeal, Sinclair complained that the trial court erred in

admitting evidence of an extraneous offense because the State failed to provide

reasonable notice of the extraneous offense. Sinclair complains that the trial court erred

in admitting the testimony of Jeff Ballew that Sinclair had used the sjambok on another

patron of the nightclub on a previous occasion. Ballew stated that Sinclair struck the

man with the sjambok and that Ballew intervened and broke up the altercation.




Sinclair v. State                                                                   Page 2
         In our April 24 opinion, we found that the trial court did not abuse its discretion

in admitting evidence of the extraneous offense. Sinclair argued in his petition for

discretionary review that we provided no analysis and cited no authority in overruling

the issue. The Court of Criminal Appeals remanded for this Court to reconsider that

particular issue.

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

discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an

abuse of discretion standard, an appellate court should not disturb the trial court's

decision if the ruling was within the zone of reasonable disagreement.” Bigon v. State,

252 S.W.3d 360, 367 (Tex. Crim. App. 2008). We will affirm the decision of the trial

court if there is any valid ground upon which the decision could have been made. State

v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). Rule 404(b) of the Texas Rules of

Evidence provides:

                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.
         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, 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.

         Sinclair argues that the State’s notice of the extraneous offense was untimely.

Sinclair filed a request for notice of extraneous offenses on November 16, 2009, and the

trial court granted the request on January 14, 2010. At a pretrial hearing on September

2, 2011, the State indicated that they did not intend to offer any extraneous offenses or


Sinclair v. State                                                                        Page 3
bad acts at trial. On October 17, 2011, the first day of voir dire, the State filed written

notice of intent to introduce evidence of extraneous offenses and acts. The notice stated

that the State intended to introduce evidence that Sinclair “has, on occasions other than

the charged offense, assaulted people with a whip at the Wispers Cabaret in Navarro

County Texas.”

         Prior to Ballew’s testimony on October 21, 2011, the trial court held a hearing

outside the presence of the jury. Sinclair argued that the evidence was untimely and

highly prejudicial. The State indicated that Ballew had informed them of the act on the

morning of voir dire and that they provided notice at that time.

         To preserve error regarding the State's failure to provide reasonable notice of its

intent to use extraneous offense evidence, the defendant must request a continuance to

mitigate the effects of surprise. See Martines v. State, 371 S.W.3d 232, 249 (Tex.App.-

Houston [1 Dist.] 2011, no pet.); Martin v. State, 176 S.W.3d 887, 900 (Tex.App.-Fort

Worth 2005, no pet.). Sinclair did not request a continuance to allow additional time to

investigate the allegations or prepare a defense.         Sinclair failed to preserve his

complaint for appellate review that the State did not provide reasonable notice of the

extraneous offense. See Martines v. State, 371 S.W.3d at 249.

         Moreover, the admission of extraneous offense evidence without proper notice is

non-constitutional error subject to a harm analysis under Rule 44.2(b) of the Texas Rules

of Appellate Procedure. TEX.R.APP.P. 44.2(b); Hernandez v. State, 176 S.W.3d 821, 824

(Tex. Crim. App. 2005).       We disregard any error that does not affect appellant's

substantial rights.    TEX.R.APP.P. 44.2(b).   The purpose of the Rule 404 (b) notice

Sinclair v. State                                                                     Page 4
requirement serves to prevent surprise to the defendant and to apprise him of the

offenses the State plans to introduce at trial. See Hernandez v. State, 176 S.W.3d at 825.

Therefore, we consider the purpose of preventing surprise in conducting the Rule 44.2

(b) harm analysis. Id.

         Ballew’s testimony was admitted several days after the State provided written

notice of intent to introduce evidence of extraneous offenses and acts. Sinclair was

aware of the incident Ballew described. Sinclair testified in detail about the incident at

trial and denied striking the previous patron with the sjambok. Sinclair testified that

there was a dispute with the patron, and he gave him a “warning sign” with the

sjambok. Sinclair further produced two photographs from the security camera showing

a picture of the patron involved in the incident. We do not find that Sinclair was

harmed by any error in admitting the extraneous offense evidence without proper

notice. We overrule the issue.

                                        Conclusion

         We affirm the trial court’s judgment.




                                           AL SCOGGINS
                                           Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 5, 2015
Do not publish
[CR 25]

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