                                                                     PD-0374-15
                                                    COURT OF CRIMINAL APPEALS
                                                                    AUSTIN, TEXAS
                                                    Transmitted 5/6/2015 9:24:25 AM
                                                      Accepted 5/6/2015 2:04:07 PM
                                                                     ABEL ACOSTA
                        PD-0374-15                                           CLERK

       IN THE TEXAS COURT OF CRIMINAL APPEALS
   _________________________________________________

              THOMAS HENRY SINCLAIR
                        APPELLANT

                            vs.

                THE STATE OF TEXAS
                       APPELLEE
   _________________________________________________

              FROM THE TENTH COURT OF APPEALS
                 CAUSE NO. 10-11-00424-CR

          APPEAL FROM THE 13TH DISTRICT COURT
        OF NAVARRO COUNTY, CAUSE NO. 33805-CR
   _________________________________________________

          APPELLANT’S PETITION FOR
           DISCRETIONARY REVIEW
   _________________________________________________

                           BRETT ORDIWAY
                           State Bar No. 24079086

                           SORRELS, UDASHEN & ANTON
                           2311 Cedar Springs, Suite 250
                           Dallas, Texas 75201
May 6, 2015
                           214-468-8100 (office)
                           214-468-8104 (fax)
                           bordiway@sualaw.com

                           Counsel for Appellant
              Ground for Review

This Court has already once reversed the court of
appeals for overruling, without analysis, Sin-
clair’s claim that the trial court erred in admit-
ting into evidence an alleged extraneous bad act.
On remand, though, the court of appeals again
avoided that question, instead overruling the is-
sue by determining it was unpreserved and that,
even if the trial court erred, it was harmless. Was
the court of appeals wrong on both bases?




                                                      2
                                         Table of Contents


Ground for Review ...................................................................................... 2

Index of Authorities .................................................................................... 4

Identity of Parties and Counsel ................................................................. 5

Statement Regarding Oral Argument ....................................................... 7

Statement of the Case and Procedural History ........................................ 8

Argument .................................................................................................. 11

   The court of appeals again improperly avoided the true issue, this
   time by incorrectly overruling it as unpreserved and harmless,
   regardless. ............................................................................................. 11

      I. The trial court’s error ................................................................... 11

      II. The court of appeals again refused to address the issue,
      resulting in a predictably strained opinion...................................... 15

      a. The court misunderstood the law as to preservation ................ 15

      b. The court misunderstood the law and the facts in holding any
      error harmless, regardless ................................................................ 18

      III. Conclusion ................................................................................... 21

Prayer ........................................................................................................ 22

Certificate of Service ................................................................................ 23

Certificate of Compliance ......................................................................... 23

Appendix ................................................................................................... 24



                                                                                                                3
                                       Index of Authorities

Cases

Buchanan v. State, 911 S.W.2d 11, 14-15 (Tex. Crim. App. 1995) ......... 16
Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007) ................. 20
Duff-Smith v. State, 685 S.W.2d 26, 33 (Tex. Crim. App. 1985) ............ 17
Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005) ........... 19, 20
Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982) ........ 16, 17
Martin v. State, 176 S.W.3d 887, 900 (Tex. App.–Fort Worth 2005, no
  pet.) ........................................................................................................ 16
Martines v. State, 371 S.W.3d 232, 249 (Tex. App.–Houston [1 Dist.]
  2011, no pet.) ......................................................................................... 16
McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005) .......... 17
Sinclair v. State, No. 10-11-00424-CR, 2014 WL 1681980 (Tex. App.–
  Waco 2014) .................................................................................. 9, 15, 20
Sinclair v. State, No. 10-11-00424-CR, 2015 WL 1021279, *2 (Tex.
  App.—Waco 2015) ......................................................................... passim
Sinclair v. State, No. PD-0669-14, 2014 WL 5370044, *1 (Tex. Crim.
  App. 2014).................................................................................... 9, 15, 21
Washington v. State, 943 S.W.2d 501, 504 (Tex. App. – Fort Worth 1997,
  pet. ref’d) ................................................................................................ 17


Statutes

TEX. PEN. CODE § 19.04 ......................................................................... 8, 12
TEX. PEN. CODE § 22.02 ......................................................................... 8, 12


Rules

TEX. R. EVID. 404(b) .................................................................................. 22




                                                                                                                 4
                  Identity of Parties and Counsel

For Appellant Thomas Henry Sinclair:

     TOBY SHOOK
     REX GUNTER
          Trial counsel of record
     SHOOK , GUNTER, & WIRSKYE
     717 N. Harwood Street, Suite 2652
     Dallas, Texas 75201

     LORI L. ORDIWAY
          Original appellate counsel of record
     P.O. Box 793991
     Dallas, Texas 75379

     BRETT ORDIWAY
          Appellate counsel of record
     SORRELS, UDASHEN & ANTON
     2311 Cedar Springs, Suite 250
     Dallas, Texas 75201

For Appellee the State of Texas:

     WILLIAM GROVER THOMPSON
     ANDREW WOLF
     PAUL THOMAS VINCENT
          Trial counsel of record
     NAVARRO COUNTY DISTRICT ATTORNEY’S OFFICE
     300 W. 3rd Avenue, Suite 203
     Corsicana, Texas 75110

     ANDREW WOLF
         Appellate counsel of record
     NAVARRO COUNTY DISTRICT ATTORNEY’S OFFICE

Trial court:



                                                    5
THE HONORABLE JAMES E. LAGOMARSINO
13TH JUDICIAL DISTRICT COURT OF NAVARRO COUNTY




                                                 6
               Statement Regarding Oral Argument

     Sinclair believes oral argument would be helpful to this Court’s

understanding of the court of appeals’s repeated errors.




                                                                   7
          Statement of the Case and Procedural History

     In Cause Number 33805-CR (Navarro County), Sinclair was

charged by indictment for one count of manslaughter, a second count of

aggravated assault causing bodily injury, and a third count of aggravat-

ed assault with a deadly weapon, all arising out of the same offense.

(CR: 32-33); see TEX. PEN. CODE §§ 19.04(a); 22.02(a)(1)&(2). The offense

was alleged to have been committed on or about October 1, 2008. (CR:

32-33).

     On October 17, 2011, the trial court conducted voir dire, and a ju-

ry was selected and sworn. (RR3: 6-152; RR4: 4-148). On the next day

[October 18, 2011], Sinclair entered a plea of not guilty, and the jury

trial commenced. (RR5: 29, et seq.). On October 26, 2011, after hearing

evidence and testimony, the jury found Sinclair guilty of the lesser-

included offense of assault. (CR: 71; RR11: 20-21); see TEX. PEN. CODE §

22.01(a)(1). On the same date, after hearing evidence and testimony at

punishment, the jury assessed punishment at confinement for one (1)

year in the county jail and a $4,000.00 fine. (CR: 76; RR12: 28-29). Sin-

clair was also sentenced on that date [October 26, 2011]. (CR: 85; RR12:




                                                                       8
33). Sinclair timely filed written notice of appeal on October 26, 2011.

(CR: 73).

     On April 24, 2014, the Waco Court of Appeals affirmed the judg-

ment of the trial court. Sinclair v. State, No. 10-11-00424-CR, 2014 WL

1681980 (Tex. App.–Waco 2014) (mem. op., not designated for publica-

tion). No motion for rehearing was filed.

     Sinclair then petitioned this Court for discretionary review, “con-

tend[ing] in part that the court of appeals provided no analysis and did

not cite any authority in overruling his issue” that “the State’s notice of

the extraneous act evidence was untimely under Rule of Evidence

404(b).” Sinclair v. State, No. PD-0669-14, 2014 WL 5370044, *1 (Tex.

Crim. App. 2014). This Court agreed, and on September 24, 2014, it

granted Sinclair’s petition for discretionary review, vacated the judg-

ment of the court of appeals, and remanded this case to that court to re-

consider the issue. Id.

     The Waco Court of Appeals nonetheless again avoided analyzing

whether the State’s notice of the extraneous act evidence was untimely,

instead overruling Sinclair’s issue because it determined it was not pre-

served, and that even if untimely it was harmless, regardless. Sinclair



                                                                         9
v. State, No. 10-11-00424-CR, 2015 WL 1021279, *2 (Tex. App.—Waco

2015). This petition now follows.




                                                              10
                                Argument

           The court of appeals again improperly avoided
           the true issue, this time by incorrectly overruling
           it as unpreserved and harmless, regardless.

                                 !   !   !

 I.   The trial court’s error

      The court of appeals adequately set out the core facts of the case:

      Sinclair operates Wispers nightclub, and the complainant,
      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 sjam-
      bok, 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.

Sinclair v. State, No. 10-11-00424-CR, 2015 WL 1021279, *1 (Tex.

App.—Waco 2015).




                                                                        11
     For this, Sinclair was charged by indictment for one count of man-

slaughter, a second count of aggravated assault causing bodily injury,

and a third count of aggravated assault with a deadly weapon. (CR: 32-

33); see TEX. PEN. CODE §§ 19.04(a); 22.02(a)(1)&(2). Accordingly, on No-

vember 16, 2009, Sinclair filed a written request for notice prior to trial

of any extraneous offenses, acts, or conduct the State intended to intro-

duce. (CR: 15). The trial court granted the request on January 14, 2010,

and ordered the State “to reveal to Defense counsel the date, manner

and means of any extraneous offense, act or conduct of the Defendant

not alleged in the indictment…which the State plans to introduce into

evidence.” (CR: 19). At a pretrial hearing conducted on September 2,

2011, the State acknowledged the defense’s request for ten days’ notice

of extraneous offenses and represented to the trial court that it did not

intend to offer any extraneous convictions (or bad acts or offenses, as

added by the trial court). (RR2: 5, 7).

     On the first day of trial, however—Monday October 17, 2011—the

State filed written notice of its intent to introduce evidence of an extra-

neous act: “that Defendant has, on occasions other than the charged of-

fense, assaulted people with a [sjambok] at the Wispers Cabaret in Na-



                                                                        12
varro County Texas.” (CR: 55). On October 21, 2011, in a hearing out-

side the presence of the jury, just before this evidence was to be offered,

witness Jeff Ballew testified that he had once before seen Sinclair use a

sjambok while fighting with a different Hispanic customer at the club.

(RR8: 12-13). According to Ballew, in the summer of 2007 Sinclair

chased the man into the parking lot, at which point Ballew got between

them. (RR8: 13-14, 15, 17).

     Sinclair’s counsel objected to the offer of Ballew’s testimony, urg-

ing that he had requested notice of any extraneous offenses several

times in pretrial hearings, that the trial court had granted those re-

quests, and that he had asked for notice on the record as recently as the

pretrial hearing on September 2, 2011, at which time the State repre-

sented that it did not have any extraneous offenses. (RR8: 18-19). De-

fense counsel further urged that this evidence was “highly prejudicial,”

that neither the name of the alleged victim nor the date of the event

was provided, and that the late date precluded notifying other witness-

es who may have been involved in such incident. (RR8: 19). Finally, de-

fense counsel also argued that this extraneous offense evidence was not

admissible under any of the exceptions in Rule 404(b) of the Texas



                                                                        13
Rules of Evidence and was essentially character conformity evidence.

(RR7: 19-20).

       The State responded that it had just learned of this alleged extra-

neous act earlier in the week and “attempted to give as best notice” as it

could to Sinclair. (RR8: 20). In response, defense counsel argued:

       Just to reurge, Judge—I mean, if this comes in, obviously,
       we’re going to have to think about trying to find out more
       fact witnesses about this. That’s the danger of this late delay
       of the notice just coming in on Monday while we’re picking a
       jury. There’s no way we can prepare for that, and, you know,
       I’m sorry that Mr. Wolf [the prosecutor] just learned about it
       on that day, but that’s a factor in this, Judge. It doesn’t need
       to come in. It’s too prejudicial.

(RR8: 22-23). The trial court nonetheless overruled the objection. (RR8:

23).

       Ballew then testified before the jury about the alleged extraneous

act. Specifically, he alleged that on another occasion Sinclair, who was

in the “pay area” of the club, hit a customer with the sjambok and

chased him into the parking lot, at which point Ballew went out to the

parking lot and broke up the fight. (RR8: 45-48). In response to Ballew’s

allegation, Sinclair explained to the jury in his testimony what actually

occurred: the customer became upset and came at Sinclair in the club,

so Sinclair told the customer to leave and then “took the [sjambok]


                                                                          14
and…gave him a warning sign with it.” (RR9: 163-66). Sinclair wholly

denied hitting the man with the sjambok, denied chasing the man

through the parking lot or hitting him there, and denied that Ballew in-

tervened in any way. (RR9: 166-69). The trial court admitted Defense

Exhibit 46, a photograph taken from the security system at the club,

showing the customer in the prior event. (RR9: 163, 167-68).

II.   The court of appeals again refused to address the issue, re-
      sulting in a predictably strained opinion

        a. The court misunderstood the law as to preservation

      Sinclair appealed to the Tenth Court of Appeals, arguing that the

trial court abused its discretion in admitting evidence of the alleged ex-

traneous offense because the State’s notice was untimely. Sinclair v.

State, No. 10-11-00424-CR, 2014 WL 1681980, *3 (Tex. App.—Waco

2014, pet. granted). The court of appeals rejected Sinclair’s claim, but

this Court vacated its judgment because it provided no analysis in so

doing. Sinclair v. State, No. PD-0669-14, 2014 WL 5370044, *1 (Tex.

Crim. App. 2014). And yet, on remand, the court of appeals again dis-

posed of Sinclair’s issue without a word, first in a single paragraph con-

cluding that the failure to request a continuance waived any complaint

on appeal about the lack of notice:


                                                                       15
     To preserve error regarding the State’s failure to provide
     reasonable notice of its intent to use extraneous offense evi-
     dence, 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 addi-
     tional time to investigate the allegations or prepare a de-
     fense. 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.

Sinclair, 2015 WL 1021279 at *2.

     The court of appeals was, again, wrong. Because, though the two

opinions of its sister courts to which it cited in fact held as much, they

are wrong. The only opinion by this Court to which they cite—Lindley v.

State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982)—does not at all

stand for the proposition for which it is cited. 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.). In

fact, this Court has consistently held that error is preserved simply by

an objection at trial to the lack of reasonable notice of the State’s intent

to introduce specific uncharged offenses. See Buchanan v. State, 911

S.W.2d 11, 14-15 (Tex. Crim. App. 1995) (sustaining appellant’s claim

that the State failed to provide reasonable notice upon his objection on



                                                                         16
that basis); Duff-Smith v. State, 685 S.W.2d 26, 33 (Tex. Crim. App.

1985) (holding that it is well settled that the proper procedure when al-

leging surprise due to violation of a trial court’s order for discovery is to

object or ask for a postponement or continuance of the trial). The only

authority from this Court that a request for continuance has any place

in the failure-to-provide-reasonable-notice analysis is McDonald v.

State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005), but, in that case,

this Court merely considered the lack of a request for a continuance as

one factor when assessing harm. It held that the Rule 404(b) error was

preserved by McDonald’s objection at trial to lack of reasonable notice of

state’s intent to introduce specific uncharged offenses. Id.

     The courts of appeals’s opinions’ mistake is somewhat under-

standable, though. For, in Lindley, 635 S.W.2d at 544, this Court indeed

said that “[t]he failure to request a postponement or seek a continuance

waives any error urged in an appeal on the basis of surprise.” But, as

evidenced by this Court’s just-discussed subsequent case law, and ex-

plained by the Fort Worth Court of Appeals in Washington v. State, 943

S.W.2d 501, 504 (Tex. App. – Fort Worth 1997, pet. ref’d) (op. on reh’g),

this Court’s holding in Lindley did not apply to a violation of the re-



                                                                          17
quirement to provide reasonable notice of extraneous offenses upon a

timely request. “In fact, [the Lindley] line of cases deals almost exclu-

sively with errors based on violations of a trial court's discovery orders.”

Id.

      It is therefore clear that an objection, and nothing more, is re-

quired to preserve a complaint about lack of notice of extraneous offense

evidence. Thus, because Sinclair’s counsel did just that, the court of ap-

peals was wrong to avoid the true issue on this basis.

        b. The court misunderstood the law and the facts in
           holding any error harmless, regardless

      In light of this Court’s vacation and remand of the court of ap-

peals’s original opinion’s “single conclusory paragraph,” though, this

time the court of appeals followed its one-paragraph preservation anal-

ysis with a one-paragraph harm analysis. Even if Sinclair’s complaint

was preserved, and meritorious, the court concluded, it was harmless:

      Ballew’s testimony was admitted several days after the State
      provided written notice of intent to introduce evidence of ex-
      traneous offenses and acts. Sinclair was aware of the inci-
      dent 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


                                                                         18
     in the incident. We do not find that Sinclair was harmed by
     any error in admitting the extraneous offense evidence with-
     out proper notice. We overrule the issue.

Sinclair, 2015 WL 1021279 at *2. This contingency conclusion is equally

strained.

     First, the court of appeals entirely ignored this Court’s opinion in

Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005), which made

clear that the harm analysis to be conducted as to this error depends on

the admissibility of the extraneous offense evidence:

     When an appellate court determines that a jury’s verdict was
     substantially influenced by the improper admission of sub-
     stantively inadmissible Rule 404(b) evidence, that influence
     on the jury’s verdict will always be “injurious” since there
     was no proper purpose for the jury to consider the evidence.
     But, this is not the case when substantively admissible Rule
     404(b) evidence is improperly admitted because of the State’s
     failure to comply with the Rule 404(b) notice provision. Un-
     der these circumstances, the error in admitting this evidence
     may have had a substantial effect or influence on the jury’s
     verdict, but it cannot be said that this effect or influence was
     “injurious” if the defendant was not surprised by the evi-
     dence.

Id. at 825 (emphasis added). In simply “consider[ing] the purpose of

preventing surprise in conducting the Rule 44.2(b) harm analysis,”

then, the court of appeals ignored the requisite initial inquiry. See Sin-

clair, 2015 WL 1021279 at *2.



                                                                        19
        As to that question, Sinclair urges that the extraneous offense ev-

idence in this case was “substantively inadmissible Rule 404(b) evi-

dence” because it did not fall under any exception provided by Rule

404(b). The purpose for offering it—as the court of appeals stated–was

because it “explained Ballew’s response to [Appellant’s] altercation

with” the complainant. Sinclair, 2014 WL 1681980 at *4. This is not an

admissible basis for extraneous offense evidence under Rule 404(b).

Moreover, Sinclair urges that the actual improper purpose for the

State’s offer of this evidence was “to prove the character of [Sinclair] in

order to show action in conformity therewith.” TEX. R. EVID. 404(b); see

also Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007) (“Evi-

dence that does not have relevance apart from character conformity is

inadmissible.”). Thus, because there was no proper purpose for the jury

to consider this evidence, the influence on the jury’s verdict was “injuri-

ous” and therefore harmful under Rule 44.2(b). See Hernandez, 176

S.W.3d at 825. The court of appeals was therefore wrong to hold other-

wise.

        Even if this Court were to conclude that this evidence was “sub-

stantively admissible Rule 404(b) evidence,” though, the error in admit-



                                                                        20
ting this evidence was “injurious” because the record shows that Sin-

clair was plainly “surprised by the evidence.” Id. The court of appeals’s

holding otherwise was entirely contingent upon its understanding that

the State gave notice of the extraneous offense on the first day of voir

dire. See Sinclair, 2015 WL 1021279 at *2 (“The State indicated that

Ballew had informed them of the act on the morning of voir dire and

that [it] provided notice at that time.”). But as explained in Sinclair’s

original brief on appeal, the defense did not get the specifics of the ex-

traneous offense testimony until the day that it was admitted. See Brief

of Appellant at 18-19. And this Court affirmed the same sequence of

events in its opinion summarily granting Sinclair’s original petition for

discretionary review. See Sinclair, 2014 WL 5370044 at *1. Under ei-

ther analysis, then, Sinclair was harmed by this violation of the Rule

404(b) notice requirement, and he is entitled to a reversal and remand

for a new trial. Accordingly, the court of appeals was wrong to avoid the

true issue on this basis, too.

III.   Conclusion

       The Waco Court of Appeals has desperately sought to avoid ad-

dressing Sinclair’s issue. First, it tried to overrule it without analysis.



                                                                        21
Then, after this Court reprimanded it for as much, it contorted itself to

analyze anything but the question. But, in so doing, the court of appeals

was required to reach conclusions that make entirely no sense.

     This Court should not tolerate as much.

                                Prayer

     Accordingly, Sinclair respectfully requests this Court to grant this

petition for discretionary review, reverse the judgment of the court of

appeals, and again remand this case to that court to consider the true

issue.

                                 Respectfully submitted,


                                      /s/ Brett Ordiway
                                 BRETT ORDIWAY
                                 Bar Card No. 24079086

                                 SORRELS, UDASHEN & ANTON
                                 2311 Cedar Springs Road Suite 250
                                 Dallas, Texas 75201
                                 (214)-468-8100 (office)
                                 (214)-468-8104 (fax)
                                 bordiway@sualaw.com

                                 Counsel for Appellant




                                                                      22
                        Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of
the foregoing Appellant’s Petition for Discretionary Review was elec-
tronically served to the Navarro County District Attorney’s Office and
the State Prosecuting Attorney on May 6, 2015.


                                      /s/ Brett Ordiway
                                  BRETT ORDIWAY




                      Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

  1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because
     this petition contains 2,544 words, excluding the parts of the brief
     exempted by TEX. R. APP. P. 9.4(i)(1).

  2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
     style requirements of TEX. R. APP. P. 9.4(e) because this brief has
     been prepared in a proportionally spaced typeface using Microsoft
     Word 2011 in 14-point Century Schoolbook.


                                      /s/ Brett Ordiway
                                  BRETT ORDIWAY




                                                                       23
Appendix




           24
                                 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]

Sinclair v. State                                                                   Page 5
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