AFFIRMED; Opinion Filed April 20, 2015.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-00082-CR

                                JOSEPH BROWN, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 363rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F13-53946-W

                             MEMORANDUM OPINION
                        Before Justices Bridges, Lang-Miers, and Myers
                                   Opinion by Justice Myers
       Appellant Joseph Brown was convicted by a jury of burglary of a habitation. He pleaded

true to the indictment’s two enhancement paragraphs that alleged prior felony convictions, which

enhanced the punishment range to twenty-five to ninety-nine years or life in prison. See TEX.

PENAL CODE ANN. § 12.42(d). The jury assessed punishment at fifty years in prison. We affirm.

                                          DISCUSSION

       In one issue, appellant argues that the trial court committed reversible error by allowing

the State to use two uncharged offenses during the punishment phase of the trial––an October

2012 burglary of a habitation offense and a January 2013 criminal mischief offense––because

those offenses had not been timely disclosed pursuant to article 37.07, section 3(g), of the Texas

Code of Criminal Procedure. Article 37.07, section 3(g), provides in part:

       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. The requirement under this subsection that the attorney representing the state
            give notice applies only if the defendant makes a timely request to the attorney
            representing the state for the notice.

TEX. CODE CRIM. PROC. ANN. art. 37.07(3)(g).

            On June 3, 2013, appellant filed an omnibus pretrial motion that contained the following

paragraph (paragraph sixteen) requesting the State to provide notice of extraneous offenses prior

to trial:

                   Defendant requests notice prior to trial of any evidence of bad acts or
            unadjudicated offense (“Grunsfeld” 1 evidence”) allegedly committed by the
            defendant, or for which he may be held criminally responsible, which the State
            intends to admit before the jury in the sentencing stage under the authority of Art.
            37.07, Code of Criminal Procedure. Further, the defendant requests the court to
            hold a sub rosa hearing to the admission of any such evidence to rule upon its
            admissibility.

The motion concluded by asking that the trial court order the State “to produce requested items

as designated above and permit the defendant to inspect, copy, photograph, and conduct any

necessary tests on such items.” On August 12, 2013, the State filed a notice of extraneous

offenses that listed ten offenses the State intended to introduce during its case-in-chief or during

punishment. At 11:15 a.m. on January 10, 2014, the State filed its first amended notice of

extraneous offenses, which added an unfiled burglary of a habitation offense from Dallas County

alleged to have committed on October 31, 2012. Four hours later, at 3:00 p.m. on January 10,

the State filed its second amended notice of extraneous offenses, which added four more

offenses. On January 13, 2014, prior to the start of voir dire, the trial court “proceed[ed] to

pretrial matters” that included appellant’s omnibus pretrial motion. The State did not object to


    1
        See Grunsfeld v. State, 843 S.W.2d 521 (Tex. Crim. App. 1992) (en banc).



                                                                    –2–
the motion and the court granted the motion “in its entirety.” The court signed the order that had

been attached to the motion, which stated that the court “finds and orders as indicated under each

enumerated item in said Motion.” That same day, on January 13, 2014, at around 11:50 2 a.m.,

the State filed its third amended notice of extraneous offenses, which added a criminal mischief

offense from Dallas County alleged to have been committed on January 22, 2013.

           Appellant contends that the above-quoted paragraph from his omnibus pretrial motion

satisfied the requirement that he make a “timely request” for article 37.07, section 3(g) evidence.

As a result, the State failed to provide timely notice of the burglary and criminal mischief

offenses. The omnibus pretrial motion, however, was a motion addressed to the trial court, not a

notice or request to the State. A discovery motion requests the trial court’s action, that is, an

order from the court directing the State to produce evidence. Mitchell v. State, 982 S.W.2d 425,

427 (Tex. Crim. App. 1998) (citing Espinosa v. State, 853 S.W.2d 36, 38 (Tex. Crim. App. 1993)

(per curiam)). A self-operating “request” is directed to a party and instructs that party to take

some action without the necessity of intervention by the court. President v. State, 926 S.W.2d

805, 808 (Tex. App.––Austin 1996, pet. ref’d). The court of criminal appeals has held that

when, as in this case, a document seeks trial court action, it cannot also serve as a request for

notice triggering the State’s duty under article 37.07 of the code of criminal procedure until it is

actually ruled on by the trial court. See Mitchell, 982 S.W.2d at 427; see also Purves v. State,

No. 05–10–01459–CR, 2010 WL 60269, at *6 (Tex. App.––Dallas Jan. 11, 2010, pet. ref’d)

(mem. op., not designated for publication); Penny v. State, No. 05–08–00494–CR, 2009 WL

1058742, at *7 (Tex. App.––Dallas April 21, 2009, pet. ref’d) (not designated for publication);

Ewere v. State, No. 05–98–00409–CR, 2000 WL 19857, at *4 (Tex. App.––Dallas Jan. 13, 2000,


     2
      The time the notice was filed is only partially visible from the copy of the document in the electronic clerk’s record. The file-mark on the
motion indicates that it was filed at “11:5” a.m.



                                                                      –3–
pet. ref’d) (not designated for publication); Love v. State, Nos. 05–98–01872–CR & 05–98–

01873–CR, 2000 WL 140543, at *3 (Tex. App.––Dallas Feb. 8, 2000, pet. ref’d) (not designated

for publication).

       In this case, appellant’s omnibus pretrial motion, although filed on June 3, 2013, was not

presented to the trial court until the hearing on January 13, 2014, at which time the trial court

ruled. Thus, the State had no duty to provide any notice until the trial court ruled. See Mitchell,

982 S.W.2d at 427; Purves, 2010 WL 60269, at *6; see also Johnson v. State, No. 05–00–

01343–CR, 2001 WL 1609403, *2 (Tex. App.––Dallas December 18, 2001, no pet.) (not

designated for publication) (when the motion was presented on day of trial and the State

provided notice after motion was granted, notice on the day of trial was timely and reasonable

under the circumstances). The record shows that the State’s third amended notice of extraneous

offenses, filed on January 13, 2014, which listed both the burglary of a habitation and criminal

mischief offenses, contained a certificate of service certifying that the attorney for the State had

hand-delivered a true and correct copy of the notice to appellant’s counsel that same day. The

notice was therefore tendered on the same day the trial court granted appellant’s omnibus pretrial

motion, and before the start of trial. Under these circumstances, we conclude that the notice was

timely and reasonable. We overrule appellant’s issue.

       We affirm the judgment of conviction.



                                                             / Lana Myers/
                                                             LANA MYERS
                                                             JUSTICE


Do Not Publish
TEX. R. APP. P. 47
140082F.U05



                                                –4–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JOSEPH BROWN, Appellant                                On Appeal from the 363rd Judicial District
                                                       Court, Dallas County, Texas
No. 05-14-00082-CR         V.                          Trial Court Cause No. F13-53946-W.
                                                       Opinion delivered by Justice Myers. Justices
THE STATE OF TEXAS, Appellee                           Bridges and Lang-Miers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 20th day of April, 2015.




                                                 –5–
