Affirmed and Memorandum Opinion filed March 4, 2014.




                                         In The

                       Fourteenth Court of Appeals

                                 NO. 14-13-00260-CR

                            KWASI POWERS, Appellant
                                              V.

                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 176th District Court
                              Harris County, Texas
                          Trial Court Cause No. 1354677

                    MEMORANDUM                     OPINION
      Appellant Kwasi Powers appeals his felony conviction for aggravated assault
with a deadly weapon in connection with an attack on his ex-wife, Coby Wages, and her
boyfriend, Oscar Espino. In a single issue, appellant contends he was denied the right to
effective assistance of counsel. We affirm.

                                      Background

      Wages and Espino left their apartment for work at approximately 10:00 p.m. on
July 5, 2012. As they walked toward their car, appellant approached the car and began
striking Espino with a metal pipe. Wages saw appellant strike Espino multiple times in
the head and body with the pipe. Attempting to help Espino, Wages threw herself on top
of Espino. Appellant hit Wages then threw her to the ground and hit her again. Wages
lost consciousness. When she woke, she saw Espino holding the metal pipe and
appellant running away.

      Espino grabbed the pipe from appellant as appellant continued to strike him. After
Espino grabbed the pipe, appellant ran from the scene. Espino followed appellant but
retreated after appellant said, “If you follow me, I’m going to pop you once.” Both
Wages and Espino described the metal pipe as similar to a car jack handle. Espino
returned to the car and Wages drove them to the hospital. Wages had a neck injury and
cuts on her legs. Espino had a bleeding head wound, and a shattered elbow and wrist.
The head wound required insertion of a piece of metal, which remains in Espino’s head.

      Deputy Maurice Bucklin of the Harris County Sheriff’s Department investigated
the scene of the assault. After interviewing witnesses, he and Deputy Martin Park drove
to appellant’s home. Bucklin observed a red floor jack under the carport at appellant’s
home. The floor jack appeared to be missing a handle. Bucklin testified that the piece
that appeared to be missing from the floor jack was similar in size and color to the pipe,
or jack handle, used by appellant to assault Wages and Espino.

      Deputy Park met Wages and Espino at the hospital. Wages gave Park the jack
handle that was used in the assault. At trial, both Wages and Espino positively identified
appellant as the individual who assaulted them. Espino also identified the car jack
handle appellant used to assault him. The jury found appellant guilty of aggravated
assault as charged in the indictment.

      During the punishment phase of trial, the State offered and the trial court admitted
evidence that appellant had four prior convictions for possession of marijuana.


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      Espino testified that due to the injuries caused by the assault he has a metal piece
in his head and is unable to lift more than thirty pounds using his left hand. During
Espino’s testimony, the prosecutor approached the bench and explained that she
intended to ask Espino about appellant’s violations of a protective order. Appellant’s
counsel objected as follows:

      Your Honor, Defense was not given notice that this was going to be
      introduced in the penalty phase of this trial; and I would say that it’s unfair
      surprise because I’m not appri[s]ed of any of the facts of this case. And I
      would not be prepared to cross-examine this witness. Any statements that
      were made I wouldn’t really know the veracity.

      The State responded that appellant failed to request notice of the State’s intent to
introduce extraneous offenses during punishment pursuant to article 37.07, section 3(g)
of the Texas Code of Criminal Procedure, which provides:

      (g) 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) (Vernon Supp. 2013).

      The trial court reviewed the file and noted that it did not see a request for notice
under article 37.07. Appellant’s counsel explained that she thought the State’s response
to her discovery request included all extraneous offenses the State intended to introduce
at punishment. The record reflects notice given by the State in a document entitled,
“Notice of Intention to Use Evidence Pursuant to Texas Rules of Criminal Evidence

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404, 609, and 37.07(g) [sic].” The disclosure listed violation of a protective order in
cause number 1354676. The State proffered two protective orders. It is unclear from the
record which of the two protective orders, if any, are the underlying protective order
that lead to the indictment listed in the disclosure.

      The trial court decided to admit evidence of the violation of the protective order
and recessed the trial to give defense counsel 15 to 25 minutes to review the State’s
evidence on the protective order.

      Following the recess, the State introduced into evidence a July 11, 2012
protective order, that prohibited appellant from communicating with Wages; going
within 200 feet of her residence; and going within 200 feet of her place of employment.
Appellant objected arguing that because the protective order referred to Wages, not
Espino, that it was irrelevant to punishment for the assault of Espino. The trial court
overruled appellant’s relevance objection.

      Espino testified that he had personal knowledge of the protective order. He
testified that the protective order was necessary because appellant assaulted Wages and
him on July 5, 2012. Espino testified that appellant violated the protective order by
attempting to contact Wages via telephone on July 26 and 28, 2012. On cross-
examination, Espino testified that they did not answer the phone and did not speak to
appellant. The phone calls stopped on July 28, 2012.

      Wages also identified State’s Exhibit 21 as the protective order issued after
appellant was arrested for assault. Wages testified that she received 18 or 19 phone calls
from appellant on July 26, 2012. Appellant first called on July 16, 2012; Wages
identified the phone number as being from the jail and did not answer again if she
received a phone call from that number.

      The State admitted State’s Exhibit 22, which was a protective order in cause


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number 2011-29523 issued June 9, 2011, while appellant and Wages were still married.
The order prohibited appellant from committing family violence against Wages,
communicating with Wages, going within 200 feet of her residence or place of
employment, possessing a firearm, and engaging in conduct directly and specifically
toward Wages that is likely to harass, annoy, alarm, abuse, torment, or embarrass
Wages.

       Wages testified, over appellant’s objection, that on May 6, 2011, appellant
threatened her with a knife. Earlier on January 22, 2011, appellant struck Wages in the
face while they were in Austin. On the same night as they drove back to Houston,
appellant repeatedly hit Wages with his fist in her face. These events led to the June 9,
2011 protective order.

       On cross-examination, appellant’s counsel questioned Wages about the contested
hearing that led to the 2011 protective order. At the hearing, Wages was represented by
counsel and appellant represented himself. Counsel questioned Wages extensively on
her motives behind obtaining the protective order and the fact that these earlier assaults
never resulted in criminal charges. Wages admitted that she smoked marijuana and
drank alcohol in front of her children.

       Appellant’s parents testified on his behalf. Appellant’s father testified that
appellant is intelligent and, if the jury gave him probation, he would welcome appellant
in his home and ensure successful completion of probation. He also testified he would
ensure appellant did not contact Wages while on probation. Appellant’s mother testified
that he could live on a trailer on their property in Nacogdoches. They live on 89 acres; if
appellant were unable to obtain employment in Nacogdoches or Lufkin, he could work
their fields.

       Each of appellant’s three children testified. They live with their grandparents and
visit Wages and Espino on the weekends. One of the children testified that one weekend
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Espino “thumped [him] on the back of [his] head.” The child testified that it did not
hurt, but scared him. The child called appellant and reported that Espino had “flicked
[him] on the ear.” All three children testified that they did not want their father to be
incarcerated.

      Appellant testified that on July 5, 2012, his son called him and reported that
Espino had hit him. This angered appellant and he tried to call Wages and ask about it,
but Wages did not answer her phone. Appellant learned where Wages lived by asking
his children, and went to the address looking for Espino. Appellant explained that he hit
Espino out of anger because he thought Espino had hit his son.

      Appellant testified that he recorded video of the night when he allegedly
threatened Wages with a knife on May 6, 2011. Appellant testified that at the time the
protective order was issued in civil court he did not have counsel. He wished that he had
retained counsel to assist him in disproving the allegations against him. He was unable
to play the video at the earlier hearing in which the protective order was issued.

      The jury assessed punishment at ten years’ confinement in the Institutional
Division of the Texas Department of Criminal Justice.

                                         Analysis

      Appellant contends that he was denied his right to effective counsel under the
Sixth Amendment of the United States Constitution because his attorney failed to
request that the State give notice of its intent to offer evidence of extraneous offenses or
bad acts pursuant to article 37.07 section 3(g) of the Texas Code of Criminal Procedure.
Appellant did not file a motion for new trial alleging ineffective assistance of counsel.

      To prevail on a claim of ineffective assistance of counsel, an appellant must show
by a preponderance of the evidence that (1) counsel’s performance was deficient
because it fell below an objective standard of reasonableness; and (2) the deficient

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performance caused appellant prejudice because there is a probability sufficient to
undermine confidence in the outcome that but for counsel’s unprofessional errors, the
result of the proceeding would have been different. See Lopez v. State, 343 S.W.3d 137,
142 (Tex. Crim. App. 2011) (citing Strickland v. Washington, 466 U.S. 668 (1984)).

          To satisfy Strickland’s first prong, the appellant must identify acts or omissions of
counsel that allegedly were not the result of reasonable judgment. Strickland, 466 U.S.
at 690. A defendant must overcome the presumption that trial counsel’s actions fell
within the wide range of reasonable and professional assistance. Garza v. State, 213
S.W.3d 338, 348 (Tex. Crim. App. 2007). To satisfy Strickland’s second prong, the
appellant must establish a reasonable probability that, but for counsel’s errors, the result
would have been different. Strickland, 466 U.S. at 694.

          Failure to satisfy either prong defeats an ineffective assistance claim. Id. at 697.
In determining whether counsel was ineffective, we consider the totality of the
circumstances of the particular case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999).

          Appellant cites Jaubert v. State, 65 S.W.3d 73, 81–82 (Tex. App.—Waco 2000),
rev’d on other grounds 74 S.W.3d 1 (Tex. Crim. App. 2002), in connection with the
first Strickland prong. He relies on Jaubert for the proposition that there is no strategic
basis for defense counsel’s failure to request notice under article 37.07, section 3(g), and
that the failure to make such a request is not justified by trial strategy. We need not
determine whether counsel’s performance was deficient before examining whether
appellant suffered prejudice as a result of alleged deficiency. See Strickland, 466 U.S. at
697; Tieu v. State, 299 S.W.3d 216, 225 (Tex. App.—Houston [14th Dist.] 2009, pet.
ref’d).

          Turning to the second prong, we find appellant failed to demonstrate prejudice.
Appellant has not made any argument or showing that the State’s evidence was
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irrelevant or inadmissible. Appellant contends his counsel was “caught off guard” that
the State sought to introduce extraneous offense testimony that appellant violated a
previous protective order. Appellant argues that had counsel been adequately prepared
she could have investigated the allegations, obtained evidence disproving their claims,
and secured possible witnesses to refute their accusations.

      The record reflects that counsel was given a 15 to 25 minute recess to review the
State’s evidence. In addition, after Wages testified for the State, the court took a 45
minute lunch break allowing more time for appellant’s counsel to discuss the allegations
with appellant. There is no evidence presented that this time period was insufficient, nor
is there evidence presented that could disprove the witnesses’ claims, because there was
no motion for new trial. On this record, we cannot conclude that there is a reasonable
probability, i.e., one sufficient to undermine confidence in the outcome, that the result
of the punishment hearing would have been different had appellant’s trial counsel
properly requested notice of the State’s intent to introduce evidence of extraneous
offenses or bad acts. See Strickland, 466 U.S. at 687, 694

      The State argues that “trial counsel likely did not request notice of extraneous
offenses and bad acts because she believed a complete notice of this evidence had been
disclosed since the State did file a notice of some extraneous offenses.” The State points
out trial counsel was entitled to rely on the State’s disclosure of extraneous offenses and
bad acts, and to assume that these acts were the only ones that the State intended to
offer. See McDonald v. State, 179 S.W.3d 571, 577–78 (Tex. Crim. App. 2005). In that
regard, we conclude that even if the trial court erred in admitting the extraneous
offenses without proper notice to appellant, the error was harmless.

      The erroneous admission of extraneous offense evidence in violation of section
3(g) is nonconstitutional error; therefore, we analyze it to determine whether the error
affected a substantial right of the defendant. Tex. R. App. P. 44.2(b); Webb v. State, 36

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S.W.3d 164, 178 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); see also Gray v.
State, 159 S.W.3d 95, 97–98 (Tex. Crim. App. 2005) (erroneous admission or exclusion
of evidence is nonconstitutional error). A substantial right is affected when the error has
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). If the error had no or only a
slight influence on the verdict, the error was harmless. See Johnson v. State, 967 S.W.2d
410, 417 (Tex. Crim. App. 1998).

      We evaluate the effect of error in admitting extraneous offense evidence without
adequate notice in light of the purpose of section 3(g), which is to prevent unfair
surprise to the defendant and to enable him to prepare to answer the extraneous offense
evidence. See Roethel v. State, 80 S.W.3d 276, 281–82 (Tex. App.—Austin 2002, no
pet.). This analysis requires examining the record to determine whether the deficient
notice resulted from prosecutorial bad faith or prevented the defendant from preparing
for trial. Id. at 282. In determining the latter, appellate courts 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. Id.

      In this case, appellant does not argue the State acted in bad faith, but argues
counsel was surprised by the evidence and not prepared to rebut the allegations of
extraneous offenses. Counsel was permitted 15 to 25 minutes to review the State’s
evidence and confer with appellant. Counsel thoroughly cross-examined Espino and
Wages about violations of the protective orders. See McDonald v. State, 179 S.W.3d at
578 (concluding that no harm resulted because, among other reasons, the defendant had
an opportunity to cross-examine the witness and attempt to discredit her, and finding
that had there been legitimate surprise, which would have altered his trial strategy, the
defendant could have requested a continuance). During closing argument, appellant’s
counsel discussed the violations of the protective orders, and attempted to cast doubt on

                                            9
Wages’ testimony regarding the assault on the drive from Austin to Houston, and the
allegedly harassing phone calls. The jury sentenced appellant to ten years in prison, well
within the range of punishment for the offense. See Tex. Penal Code Ann. § 12.33 (West
2011) (range of punishment for second degree felony is two to twenty years).

      Whether we view this case under the Strickland harm analysis (for failing to
request the notice) or under the standard in McDonald (for admitting evidence when the
State failed to give proper notice) we find no harm. We overrule appellant’s sole issue
and affirm the trial court’s judgment.




                                         /s/    William J. Boyce
                                                Justice




Panel consists of Justices Boyce, Christopher, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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