                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                NOS. 2-08-479-CR
                                      2-08-480-CR


DW IGHT ROGERS JR.                                                    APPELLANT

                                            V.

THE STATE OF TEXAS                                                          STATE

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            FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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                          MEMORANDUM OPINION 1

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                                  I. Introduction

      Appellant Dwight Rogers Jr., appeals his four convictions and consecutive life

sentences for aggravated sexual assault of a child. W e affirm.

                        II. Factual and Procedural History

      Forty-five days before trial, Rogers filed a twelve-page document titled

“Defendant’s Motion for Discovery.” Addressed “To the Honorable Judge,” the


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           See Tex. R. App. P. 47.4.
document requests the court to “instruct the prosecutor in this case to produce” forty-

seven items for discovery, including extraneous offense evidence. At 3:30 p.m. on

the Thursday before trial, Rogers filed another document titled “Motion for Disclosure

of Evidence of Other Crimes, W rongs or Acts W hich the State Intends to Use in the

Case-in-Chief.” As with his previous document, this document is addressed to the

trial court, and it requests the trial court to require the State to disclose extraneous

offenses it intends to offer during its case-in-chief. The prosecutor received a copy

of this second document on the Friday before trial. Over the weekend, he prepared

a list of extraneous offenses that he planned to introduce at trial and presented the

list to Rogers the Monday morning of jury selection before Rogers presented either

document to the trial court.

      W ith the venire waiting outside the courtroom, Rogers informed the trial court

that he would announce “not ready” and move for a continuance because he had

only that morning received notice of extraneous offense evidence that the State

intended to offer at punishment. The trial court denied the motion for continuance.

After first informing the venire that there would be a delay, the trial court granted

Rogers an unscheduled hearing on his motion for discovery, which Rogers referred

to as an “omnibus discovery motion.” 2 The parties agreed that Rogers had received

extraneous offense notice that morning, although they disagreed whether the notice

      2
       Because it is undisputed that the State provided notice before Rogers
presented his motions to the trial court for ruling, the trial court’s rulings on the
motions are not germane to the issues presented in this case.

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had been timely. After the hearing concluded, the venire was seated, a jury was

selected, and the trial court adjourned until W ednesday.

      On W ednesday, the guilt-innocence phase commenced and lasted two days.

On Friday, the jury returned guilty verdicts on all four counts. During the punishment

phase the trial court admitted, over Rogers’s objections, extraneous offense

evidence for which Rogers had received notice on the Monday morning before trial.

The jury assessed a life sentence for each of the four convictions, and the trial court

ordered the sentences to run consecutively.

                                   III. Discussion

A. Admission of Extraneous Offense Evidence at Punishment

      In his first point, Rogers contends that the trial court erred by admitting

extraneous offense evidence during the punishment phase because the State’s

compliance with his notice request contained within his discovery motion was

untimely. W e disagree.

      Section 3(g) of Article 37.07 of the code of criminal procedure provides in

relevant part, “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. 2009). Rogers does not contend that the State’s

response to his motion seeking notice filed the Thursday afternoon before trial was




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untimely, but urges us to “look at the Motion for Discovery” filed forty-five days before

trial. W e will, therefore, consider his point on the basis of that motion.

      In Mitchell v. State, the court of criminal appeals held that a motion containing

a request for the State to provide notice of its intent to offer evidence of extraneous

offenses does not trigger the notice requirements of section 3(g). 982 S.W .2d 425,

427 (Tex. Crim. App. 1998). To “hold otherwise,” the court wrote, “would encourage

gamesmanship” and “could encourage defendants to bury requests in voluminous

motions, hoping the State would either overlook it” or believe it to be contingent upon

a court order. Id. Thus, the court of criminal appeals made clear that requests for

notice of the State’s intent to offer extraneous offense evidence embedded within

motions directed to the trial court are not self-executing requests but, instead,

require a trial court’s ruling before triggering the State’s duty to provide notice. See

id.; see also Simpson v. State, 991 S.W .2d 798, 801 (Tex. Crim. App. 1998).

      It is undisputed that Rogers sought notice of the State’s intent to use

extraneous offense evidence at punishment through a motion directed to the trial

court. It is addressed “To the Honorable Judge.” Rogers characterized it as a

motion, referring to the twelve-page document as an “omnibus discovery motion.”

It asks the court to “instruct the prosecutor in this case to produce” forty-seven items

of discovery, including “[e]vidence of any extraneous offenses.”

      W e hold that Rogers’s motion suffers the same defect as Mitchell’s in that it

is a motion directed to the trial court containing an embedded request for notice, and


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that it does not, therefore, trigger the State’s duty to provide notice. See Mitchell,

982 S.W .2d at 427.     Moreover, the State provided notice before Rogers ever

presented his motion to the trial court for a ruling. Accordingly, we decline to hold

that the trial court abused its discretion by admitting extraneous offense evidence at

punishment on the basis that the State’s notice of its intent to offer that evidence was

untimely. W e overrule Rogers’s first point.

B. Denial of Motion for Continuance

      In his second point, Rogers complains of the trial court’s denial of his motion

for continuance.

      The denial of a motion for continuance is within the discretion of the trial court

and will not be reversed on appeal unless it is shown that the trial court abused its

discretion. Renteria v. State, 206 S.W .3d 689, 699 (Tex. Crim. App. 2006); Janecka

v. State, 937 S.W .2d 456, 468 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825

(1997). Rogers moved for a continuance based upon his claim that the State’s

notice of extraneous offenses it planned to offer at trial was untimely. W e have

already held that the trial court acted within its discretion to admit the extraneous

offense evidence because Rogers failed to trigger the State’s duty to provide notice

by burying his request for notice in a motion that he did not seek a ruling on until

after the State had actually provided notice. Similarly, we hold that it was within the

trial court’s discretion to deny Rogers a continuance based upon a claim of untimely

notice when the reason he received notice when he did was because he failed to


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trigger the State’s duty to provide it. See Cabello v. State, 655 S.W .2d 293, 297

(Tex. App.—Corpus Christi 1983, no pet.) (holding that trial court did not abuse

discretion by denying continuance when defendant was not diligent in identifying and

seeking witnesses); Tucker v. State, No. 02-06-00054-CR, 2007 W L 439070, at *4

(Tex. App.—Fort W orth Feb. 8, 2007, no pet.) (mem. op., not designated for

publication) (same). Accordingly, we overrule Rogers’s second point.

                                 IV. Conclusion

      Having overruled both of Rogers’s points, we affirm the trial court’s judgment.



                                             PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 20, 2010




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