                           NUMBER 13-13-00647-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

BRUCE DUNCAN,                                                             Appellant,


                                          v.


THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 347th District Court
                         of Nueces County, Texas.


                        MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Rodriguez and Longoria
             Memorandum Opinion by Justice Longoria
      A Nueces County jury found Bruce Duncan guilty of the state jail felony offense of

forgery involving a check, see TEX. PENAL CODE ANN. § 32.21(d) (West 2011) (“Forgery”),

and after finding that Duncan had been previously convicted of two prior felonies, as
alleged by the State in the indictment, the jury assessed a thirteen year prison sentence

and a $5,000 fine, pursuant to the habitual felony offender statute under which the state

jail felony offense of forgery was punishable as a second degree felony offense. See id.

§ 12.425 (West Supp. 2013) (“Penalties for Repeat and Habitual Felony Offenders on

Trial for State Jail Felony”); id. § 12.33 (West 2011) (“Second Degree Felony

Punishment”).

       Duncan now appeals his conviction by three issues in which he complains about

the admission into evidence of State’s Exhibits 7 and 8, which were copies of two different

checks from West Oso Independent School District (“WOISD”) that were allegedly forged

and presented by Duncan at two different banks. State’s Exhibit 7 was purportedly a copy

of the check identified in the indictment in the amount of $2,485.56. It served as the basis

for the forgery charge. State’s Exhibit 8 was a copy of a second check in the amount of

$2,456.34 that Duncan allegedly presented to a different bank on the same day. The

State argued State’s Exhibit 8 was admissible as “same transaction contextual evidence”

and as evidence to rebut Duncan’s asserted defense of mistake.

       In his first and second issues on appeal, Duncan argues that the trial court erred

in admitting State’s Exhibits 7 and 8 over his objection that they were not the original

checks and were therefore inadmissible under Rule 1002 of the Texas Rules of Evidence.

See TEX. R. EVID. 1002 (“Requirement of Originals”). In his third issue, Duncan argues

that the trial court erred in admitting State’s Exhibit 8 over his objections that it was

inadmissible under Rule 404(b) because (1) the State purportedly failed to provide

Duncan with the required notice of its intent to offer the evidence in its case-in-chief and

(2) there is no exception under Rule 404(b) for extraneous offense evidence of a “pattern.”



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See TEX. R. EVID. 404(b) (“Other Crimes, Wrongs or Acts”). For the reasons set forth

below, we conclude that Duncan has failed to establish reversible error. Accordingly, we

affirm the trial court’s judgment.

                                     I. STANDARD OF REVIEW

       “[A] trial court’s ruling admitting or excluding evidence is reviewed on appeal for

abuse of discretion.” Ramos v. State, 245 S.W.3d 410, 417–18 (Tex. Crim. App. 2008)

(citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). “[T]he trial court’s

ruling will be upheld if it is reasonably supported by the record and is correct under any

theory of law applicable to the case.” Id. at 418. “In other words, as long as the trial

court’s decision was within the zone of reasonable disagreement and was correct under

any theory of law applicable to the case, it must be upheld.” Winegarner v. State, 235

S.W.3d 787, 790 (Tex. Crim. App. 2007). “This is so because ‘trial courts . . . are usually

in the best position to make the call on whether certain evidence should be admitted or

excluded.’” Id. (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

Accordingly, in reviewing the admissibility of the evidence, “[t]he appellate court [must

not] effectively displace[] the trial court, commandeering a function institutionally assigned

elsewhere.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en

banc). “The trial court’s ruling is not, however, unreviewable.” Id. Under the applicable

standard of review, “[t]he trial court abuses its discretion only when the decision lies

outside the zone of reasonable disagreement.” Davis v. State, 329 S.W.3d 798, 803 (Tex.

Crim. App. 2010) (quotations omitted).




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                                II. THE BEST EVIDENCE RULE

       In his first and second issues, Duncan complains that the trial court erred in

admitting State’s Exhibits 7 and 8 because they were copies of the checks at issue, not

the original checks.

A. Applicable Law

       Rule 1002 of the Texas Rules of Evidence provides that “[t]o prove the content of

a writing, recording, or photograph, the original writing, recording, or photograph is

required except as otherwise provided in these rules or by law.” TEX. R. EVID. 1002. Rule

1003 provides the following exception to this requirement: “A duplicate is admissible to

the same extent as an original unless (1) a question is raised as to the authenticity of the

original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the

original.”   TEX. R. EVID. 1003 (“Admissibility of Duplicates”).        The authentication

requirement for admissibility “is satisfied by evidence sufficient to support a finding that

the matter in question is what its proponent claims.” TEX. R. EVID. 901(a).

       Rule 1004 provides another exception in relevant part as follows:

       The original is not required, and other evidence of the contents of a writing,
       recording, or photograph is admissible if:

       (a) Originals Lost or Destroyed. All originals are lost or have been
       destroyed, unless the proponent lost or destroyed them in bad faith; [or]

       (b) Original Not Obtainable. No original can be obtained by any available
       judicial process or procedure . . . .

TEX. R. EVID. 1004(a)–(b) (“Admissibility of Other Evidence of Contents”).

B. Relevant Facts

       At trial, one of the State’s witnesses was Lori Taylor, a bank service manager for

Wells Fargo Bank (the “Bank”), who testified without objection that on February 29, 2012,

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Duncan came to her bank to cash a check from WOISD. The prosecutor then handed

Taylor a copy of the check marked as State’s Exhibit 7 and elicited testimony from her

that she recognized it as a “true and correct copy of the check,” that it was made out to

Bruce Duncan, that it was for $2,485.63, that it was numbered 12772, that the original

check had been electronically scanned and was sent to storage before it was destroyed

forty-five days later, and that the check was from WOISD and purportedly had been

signed by Velma Rodriguez and David Palacios. When the State then tendered State’s

Exhibit 7, Duncan objected that the exhibit was not the original check. Although Duncan

acknowledged that “[Rule] 1004 has the exception that the destruction of the check or the

destruction of a document is an exception,” he argued that “it must be done in good faith.”

Duncan then argued in relevant part as follows:

       Again, they found out that this was [a] forgery within days, there’s absolutely
       no reason we should not have the original check here. Things like
       watermarks are very, very important. Things like the texture of the check,
       things like determining whether or not, in good faith, anyone would believe[]
       that it was real, that’s extremely important stuff. At the very minimum, I’d
       like to voir dire her on the subject in determining as to why this check was
       destroyed.

The trial court overruled the objection and admitted the evidence.

       The State also presented the testimony of Maria Avalos, a bank teller for a

separate branch of the Bank, who testified that on February 29, 2012, Duncan presented

her with a check from WOISD in an amount that was over $2,000, which was purportedly

signed by Velma Rodriguez and David Palacios and made payable to Bruce Duncan.

Avalos testified that State’s Exhibit 8 was a “fair and accurate depiction or copy of the

original check that . . . [she] received that day.” The trial court admitted State’s Exhibit 8




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over Duncan’s objection that it was “not an original and it should not be admissible

pursuant to . . . [Rule 1002] of the Texas Rules of Evidence . . . .”

       During closing argument, Duncan’s attorney admitted that the checks at issue were

forgeries that Duncan cashed on February 29, 2012:

       There are several elements they have to prove. First, is the check a
       forgery? And we admit it’s a forgery. We all know it’s a forgery. Check No.
       12772, Check No. 12773 are forgeries. Did Bruce Duncan cash those
       checks to Lori Taylor [and Maria Avalos]? He absolutely did, you’ve seen
       the evidence, [sic] you’ve seen the checks, [sic] he absolutely cashed them.
       The question is, he did not know the checks were forged. He did not intend
       to defraud, or harm anyone. You have not heard one bit of evidence from
       the State that shows he had intent. In fact, every bit of evidence you heard
       shows evidence that’s clearly the opposite.

C. Discussion

       On appeal, Duncan argues that State’s Exhibit 7 was inadmissible under Rule

1004 because he established that “the bank had ample opportunity to locate the original

within a 45 day period after finding out that the check in question was a forgery.” See

TEX. R. EVID. 1004(a). According to Duncan, “[s]ince the [B]ank did not present the

original nor did it make any attempt to locate it before it was destroyed, . . . such action

amounted to bad faith and [was] in violation of the Texas Rules of Evidence.” See id.

Duncan makes the same argument with respect to State’s Exhibit 8.

       We reject Duncan’s argument that the evidence was inadmissible under Rule

1004(a) because, as a practical matter, the Bank was not the proponent of the evidence

at trial—the State was. See id. The evidence was admissible under Rule 1004(a)

because the State established that the original checks had been lost or destroyed, and

Duncan never asserted or attempted to prove that the State, as the proponent of the

evidence, lost or destroyed the original checks in bad faith. See id. Therefore, Duncan



                                              6
has not established that State’s Exhibits 7 and 8 were inadmissible as “other evidence”

of the original checks under Rule 1004(a) of the Texas Rules of Evidence. Id.

       Furthermore, Duncan has not negated the admissibility of State’s Exhibits 7 and 8

as duplicates under Rule 1003, which as set forth above, contains two clauses under

which duplicates are inadmissible.      See TEX. R. EVID. 1003.        We will address the

admissibility of the evidence under both clauses. See id.

       First, under clause (1) of Rule 1003, “a duplicate . . . is inadmissible if ‘a question

is raised as to the authenticity of the original.’” Narvaiz v. State, 840 S.W.2d 415, 431

(Tex. Crim. App. 1992). “That is, under Rule 1003 a duplicate is inadmissible if, on the

evidence presented, reasonable jurors might differ as to whether the original is what it is

claimed to be.” Id. Here, the State alleged that the two checks were checks that Duncan

presented to the Bank on February 29, 2012. At trial, there was no dispute, and in fact,

Duncan conceded, that the two checks evidenced by State’s Exhibits 7 and 8 were the

checks he presented at the Bank and that they were forgeries. There was no evidence

that would raise a question about whether the checks were what the State claimed them

to be. Reasonable jurors could not disagree about whether the checks were the actual

checks presented by Duncan, as the State alleged. See id. Therefore, Duncan has not

established that State’s Exhibits 7 and 8 were inadmissible as duplicates under clause

(1) of Rule 1003. See TEX. R. EVID. 1003(1).

       Second, with respect to the admissibility of the evidence under clause (2) of Rule

1003, we note that although we agree with Duncan that the original checks were “very

important” evidence with potentially unique probative value that the other evidence and

duplicates might not have offered, we conclude that the potentially unique probative value



                                              7
of the original checks went to the issues of whether the checks were the actual checks

presented by Duncan and whether the checks were forgeries. See TEX. R. EVID. 1003(2).

Given that Duncan admitted both of these facts, we cannot conclude that it was unfair to

admit the duplicates in lieu of the originals under clause (2) of Rule 1003. See id.

       Finally, assuming arguendo that it was error to admit State’s Exhibits 7 and 8, we

conclude that any such error was harmless. “It is well established that the improper

admission of evidence does not constitute reversible error if the same facts are shown by

other evidence which is not challenged.” Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim.

App. 1998) (quotations omitted). “Our rule, therefore, is that overruling an objection to

evidence will not result in reversal when other such evidence was received without

objection, either before or after the complained-of ruling.” Id. at 718. “This rule applies

whether the other evidence was introduced by the defendant or the State.” Id.

       Here, before Duncan made any objection to State’s Exhibit 7, Taylor testified

without objection to the essential facts of the State’s case with respect to State’s Exhibit

7. It was not until the State tendered State’s Exhibit 7 that Duncan objected that the

exhibit was not the original check. At that point, “the substance of this evidence . . . [had

been] admitted without limitation or objection during the complainant’s [employee’s]

testimony on direct examination by the State.” Klien v. State, 273 S.W.3d 297, 318 (Tex.

Crim. App. 2008). Thus, any error in the admission of State’s Exhibit 7 was “harmless.”

Id.

       The same is true with respect to Duncan’s complaint about the admission of State’s

Exhibit 8. Avalos testified to the essential facts of the State’s case with respect to State’s

Exhibit 8 without objection. Although Duncan made a timely objection to State’s Exhibit



                                              8
8 under Rule 404(b), it was not until the State tendered State’s Exhibit 8 that Duncan

objected that the exhibit was not the original check. See TEX. R. EVID. 404(b). Again, “[i]t

is well settled in this state that the erroneous admission of testimony is not cause for

reversal, if the same fact is proven by other testimony not objected to.” Leday, 983

S.W.2d at 718 (quotations omitted). Therefore, any error in the admission of State’s

Exhibit 8 based on it not being the original check “is not cause for reversal” because

Avalos’s testimony proved the same facts. Id.

       Accordingly, we overrule Duncan’s first and second issues.

                            III. EXTRANEOUS OFFENSE EVIDENCE

       In his third and final issue, Duncan contends that the trial court abused its

discretion by admitting State’s Exhibit 8 over his two objections: (1) that he did not receive

“reasonable notice,” as required by Rule 404(b); and (2) that the evidence was

inadmissible because there is no “pattern” exception in Rule 404(b). See TEX. R. EVID.

404(b).

A. Applicable Law

       Rule 404(b) provides as follows:

       Other Crimes, Wrongs or Acts. 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.

Id.




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B. Standard of Review

         With regard to notice, “[t]he ultimate issue is whether the State’s notice was

‘reasonable.’” Castillo v. State, 186 S.W.3d 21, 33 (Tex. App.—Corpus Christi 2005, pet.

ref’d). The trial court has discretion to determine whether the State provided reasonable

notice as required by Rule 404(b). Hayden v. State, 66 S.W.3d 269, 273 (Tex. Crim. App.

2001).     “[T]he reasonableness of the notice is determined by all of the facts and

circumstances of the case.” Castillo, 186 S.W.3d at 34. “The reasonableness of the

notice must also be determined by reference to the purpose of the rule: to eliminate the

unfair prejudice that can result from the surprise introduction of extraneous offense

evidence at trial.” Id. “A determination that is within the zone of reasonable disagreement

does not constitute an abuse of discretion.” Id. “Since the notice requirement of Rule

404(b) is a rule of evidence admissibility, then it is error to admit Rule 404(b) evidence

when the State has not complied with the notice provision of Rule 404(b).” Hernandez v.

State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005).

C. Relevant Facts

         In Duncan’s request for Rule 404(b) notice, he specifically asked only “that the

prosecutor give written notice in advance of trial of the State’s intent to introduce evidence

of other crimes, wrongs or acts (adjudicated or unadjudicated) in punishment pursuant to

Rule 404(b).” (emphasis added). However, in a subsequent paragraph of the request,

contingent upon the failure of the State to provide the requested notice, Duncan asked

the trial court to order written notice of Rule 404(b) evidence to be introduced at either the

guilt-innocence or punishment phases of trial.




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         The State then filed notice of its intent to offer a list of extraneous offenses at both

the guilt-innocence and punishment phases of trial, which did not specifically include the

collateral forgery involving check 12773 (i.e., State’s Exhibit 8). However, the State’s

notice did include the following:

         The State also plans to offer any evidence as to any of the Defendant’s prior
         offenses/crimes/wrongs/acts and/or prior conduct that is referred to in the
         discovery provided, and any evidence and documents referring to the case
         at chief that has been provided in the discovery packet, and hereby provides
         notice of its intent to do so under [R]ules 803, 804, and 902.

         At trial, the State represented, and Duncan agreed, that evidence of this second

check, State’s Exhibit 8, had been provided to the defense in discovery. However,

Duncan argued that the State failed to provide proper Rule 404(b) notice of its intent to

use the second check as extraneous offense evidence. The State then represented that

Duncan had witness statements concerning the second check and thus had sufficient

notice of it, and Duncan conceded that he had notice of the check but maintained that he

was not aware that it would be used under Rule 404(b). Duncan further argued that the

evidence was inadmissible under Rule 404(b) because it did not fall within any of the

exceptions enumerated in the rule. Specifically, Duncan objected that Rule 404(b) does

not include an exception for a “pattern” of extraneous offenses in its “other purposes”

prong.

         The trial court overruled Duncan’s objections to the sufficiency of the State’s Rule

404(b) notice and to the admissibility of the evidence under Rule 404(b). The trial court

then admitted State’s Exhibit 8 into evidence over Duncan’s objections, and the State

used State’s Exhibit 8 to prove that Duncan knew that both checks were forgeries and to

refute Duncan’s assertion of mistake and lack of intent to commit forgery.



                                               11
D. Discussion

       On appeal, Duncan contends that the trial court erred in overruling his objections

to State’s Exhibit 8. We begin with Duncan’s complaint as it pertains to the sufficiency of

the State’s Rule 404(b) notice, which we reject for two reasons. First, we agree with the

State that Duncan’s request for notice pursuant to Rule 404(b) was deficient in the sense

that it was limited to evidence to be offered by the State during the punishment phase of

trial, whereas the complained-of evidence, State’s Exhibit 8, was offered during the guilt-

innocence phase of trial. Second, even assuming Duncan’s request was not deficient,

we would conclude that Duncan has not established an abuse of discretion with respect

to the trial court’s determination that the State’s Rule 404(b) notice was sufficient because

Duncan’s attorney had actual notice of the evidence, which was provided to counsel in

the State’s discovery packet, and because based on the facts and circumstances set forth

in the record and summarized above, it would be possible for reasonable minds to reach

different conclusions about whether the State’s notice was reasonable and whether

Duncan suffered unfair surprise when the State offered State’s Exhibit 8 into evidence.

See Castillo, 186 S.W.3d at 34. Therefore, the ruling was not outside the zone of

reasonable disagreement. See Winegarner, 235 S.W.3d at 790. Based on the foregoing,

we conclude that Duncan has not demonstrated an abuse of discretion with respect to

the trial court’s ruling on the notice issue.

       Next, we turn to Duncan’s contention that State’s Exhibit 8 was inadmissible under

Rule 404(b) because “Rule 404(b) does not have a pattern exception.” The Texas Court

of Criminal Appeals has explained that, without more, evidence of a “‘system’ or ‘pattern’

of committing offenses by itself . . . [creates] exactly the forbidden inference” that Rule



                                                12
404(b) is designed to prevent. Johnston v. State, 145 S.W.3d 215, 222 (Tex. Crim. App.

2004). “That is why ‘pattern’ is not listed in Rule 404(b) as an exception.” Id. However,

“[p]atterns of acts may show identity, intent, plan, absence of mistake, or one of the other

listed grounds” in the “other purposes” prong of Rule 404(b). Id.

       In this case, the State offered State’s Exhibit 8 to establish Duncan’s knowledge

that State’s Exhibit 7, the check identified in the indictment, was a forgery and that he

therefore acted with the requisite intent to commit the offense of forgery and that there

was no mistake or lack of intent, as Duncan asserted at trial. See TEX. PENAL CODE ANN.

§ 32.21. Since Rule 404(b) specifically includes “intent,” “knowledge,” and “absence of

mistake” in its list of exceptions in its “other purposes” prong, and because Duncan has

not asserted or explained why the complained-of evidence does not fit within those

exceptions, we conclude that he has failed to demonstrate that the trial court abused its

discretion by admitting State’s Exhibit 8 under Rule 404(b). See TEX. R. EVID. 404(b).

       Accordingly, we overrule Duncan’s third issue.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment.




                                                    NORA L. LONGORIA
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
1st day of May, 2014.




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