                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-13-00358-CR

                                        Perla Judith PENA,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 229th Judicial District Court, Starr County, Texas
                                   Trial Court No. 12-CRS-440
                            Honorable Ana Lisa Garza, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: October 8, 2014

AFFIRMED AS MODIFIED

           A jury convicted Perla Pena of possession of marihuana in the amount of more than 50

pounds but less than or equal to 2,000 pounds. TEX. HEALTH & SAFETY CODE ANN. § 481.121

(West 2010). Pena raises four points of error on appeal, arguing (1) the trial court admitted

evidence in violation of Texas Rule of Evidence 404(b); (2) the trial court’s charge deprived her

of a fair trial; (3) the trial court erred by ordering her to serve her sentence for this conviction

consecutively to an earlier federal sentence; and (4) she received ineffective assistance of counsel.
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                                           BACKGROUND

       Jesus Diaz, a narcotics investigator with the Starr County District Attorney’s Office,

received a tip that narcotics were stashed in an apartment in Roma, Texas. When Diaz went to the

apartment to investigate, no one responded to his knocking on the door. Diaz smelled a strong odor

of marihuana emanating from the apartment, and he called in a canine unit. After the dog alerted

outside the door, Diaz obtained a search warrant and entered the apartment. Inside the apartment,

he found 140 bundles of marihuana, which he testified weighed 1,886 pounds.

       No one was present in the apartment when Diaz executed the warrant. He began to

investigate the identity of the apartment’s tenant, but matters were complicated by the fact that

documents with at least six different male and female names were present in the apartment.

Although the rent was paid under the name of Rafael Gonzalez, Diaz eventually concluded that an

individual named Perla Pena was the tenant, and he obtained a warrant for her arrest. Four months

after the apartment search, he stopped Pena for a traffic violation and arrested her.

                                     ADMISSION OF EVIDENCE

       Pena argues the trial court erroneously admitted evidence of extraneous bad acts because

the State did not provide her with reasonable pretrial notice of its intent to do so.

           A. Did the trial court err in admitting evidence of extraneous bad acts?

       Rule 404(b) provides that evidence of a defendant’s other crimes, wrongs, or acts may be

admissible in the State’s case-in-chief if the defendant is given reasonable notice in advance of

trial of the State’s intent to introduce such evidence. TEX. R. EVID. 404(b); Hernandez v. State,

176 S.W.3d 821, 822 (Tex. Crim. App. 2005); Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App.

2002). “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, 176 S.W.3d at 824.
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       Pena filed a motion for notice of the State’s intent to use 404(b) evidence one and one-half

months before trial. The State gave its notice the morning of trial. Notice of the State’s intent to

use 404(b) evidence given on the day of trial is not reasonable notice. Umoja v. State, 965 S.W.2d

3, 7 (Tex. App.—Fort Worth 1997, no pet.); cf. Hernandez v. State, 914 S.W.2d 226, 234 (Tex.

App.—Waco 1996, no pet.) (“We do not believe that a 404(b) response filed on a Friday afternoon

is an adequate or reasonable appraisal of extraneous offenses for a trial beginning the following

Monday morning.”).

       In a hearing outside the presence of the jury, the trial court indicated that it would prohibit

evidence of Pena’s extraneous bad acts due to the State’s failure to give reasonable notice.

Nevertheless, Pena has identified several instances at trial where she contends 404(b) evidence

was erroneously admitted.

           •   Evidence from Pena’s apartment

       The State introduced into evidence a photograph of two documents found in Pena’s

apartment during Diaz’s search. One of them was a Texas identification card with Pena’s

photograph, but under the name of Zoraida Rodriguez. The other document was a social security

card under the same name. The Texas ID card with Pena’s picture on it tended to show Pena was

connected to the apartment where the marijuana was found. However, both cards also tended to

show Pena was in possession of falsified government documents. The trial court permitted the

evidence over Pena’s renewed notice objection. The admission of this evidence was erroneous

because the State did not give notice until the morning of trial. See Umoja, 965 S.W.2d at 7.

           •   Evidence about Pena’s stop and arrest

       The State questioned Diaz about his traffic stop and arrest of Pena. Diaz testified he stopped

Pena because she was not wearing a seatbelt. Diaz also testified that she identified herself as San



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Juanita Muniz. Pena did not object to this testimony. Because Pena did not object, she did not

preserve any error from its admission. See TEX. R. APP. P. 33.1.

           •   Evidence of Pena’s prior convictions

       During the punishment stage of the trial, the State elicited testimony from Pena that she

had been convicted of several offenses in state and federal courts. The State introduced judgments

for each conviction. Pena did not object to the State’s questioning and affirmatively stated “no

objection” to the introduction of each judgment into evidence. Because Pena did not object, she

did not preserve any error from its admission. See TEX. R. APP. P. 33.1. Moreover, the State did

not introduce evidence of Pena’s convictions during its case-in-chief; rather, the State introduced

the prior convictions when it cross-examined Pena to rebut the mitigating evidence she offered in

the punishment phase. Under these circumstances, the State was not required to give notice to Pena

before introducing her prior convictions. See Jaubert, 74 S.W.3d at 4 (holding counsel could not

be ineffective for failing to object to 404(b) evidence on the basis of a lack of notice because the

evidence was introduced on the State’s cross-examination of a defense witness and from rebuttal

witnesses and thus Rule 404(b)’s notice requirement did not apply to that evidence).

           B. Was the trial court’s error in admitting some extraneous bad acts harmful?

       To determine whether the trial court’s admission of evidence in violation of Rule 404(b)’s

notice provision requires reversal, we apply a non-constitutional error harm standard. Hernandez,

176 S.W.3d at 824. Under this standard, the trial court’s error must be disregarded unless it affected

Pena’s substantial rights. TEX. R. APP. P. 44.2(b); Morales v. State, 32 S.W.3d 862, 867 (Tex.

Crim. App. 2000). A substantial right is affected when the error had a substantial and injurious

effect or influence in determining the jury’s verdict. Hernandez, 176 S.W.3d at 824. We will not

reverse if, after examining the record as whole, we have fair assurance that the error did not



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influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.

App. 1998).

       When Rule 404(b)’s procedural notice provision has been violated, we may consider in the

harm analysis whether the evidence would have been substantively admissible had the State

provided the required notice. Hernandez, 176 S.W.3d at 825. If substantively admissible 404(b)

evidence is admitted in violation of the rule’s notice provision, the trial court’s error in admitting

the evidence cannot be “injurious” if the defendant was not surprised by the evidence. Id.

       The State argued at trial the Texas ID card with Pena’s photograph was relevant for a

purpose other than proving character conformity because it showed she was connected to the

apartment and thus had possession of the marihuana in it. We agree the Texas ID card was relevant

for a purpose other than character conformity. The district attorney’s office has an open-file policy,

and Pena’s counsel acknowledged that he had seen documents like the Texas ID card in the State’s

file prior to trial. We conclude the admission of the Texas ID card did not affect Pena’s substantial

rights because it was substantively admissible and she was not surprised by the evidence.

       However, the social security card that was admitted along with the Texas ID card was not

substantively admissible because it did not have a photograph of Pena on it. Instead, it only had

the same alias as the one on the Texas ID card. The only mention of the social security card

occurred when the cards were first introduced. Thereafter, the State only referred to the Texas ID

card. In the context of the overall record, we cannot conclude the social security card’s admission

had a substantial or injurious effect on the jury’s verdict.

                                           JURY CHARGE

       Pena complains the jury charge contained error because (1) it did not instruct the jury on

both the statutory definition of “marihuana” and on the statutory exclusions from the definition of

marihuana; and (2) it did not contain a limiting instruction that the jury could not consider any
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evidence of extraneous bad acts unless it believed Pena had committed them beyond a reasonable

doubt.

            •   Instruction on the definition of marihuana

         The Health and Safety Code defines “marihuana” as “the plant Cannabis sativa L., whether

growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture,

or preparation of that plant or its seeds.” TEX. HEALTH & SAFETY CODE ANN. § 481.002(26) (West

Supp. 2014). The Code specifically excludes “(A) the resin extracted from a part of the plant or a

compound, manufacture, salt, derivative, mixture, or preparation of the resin; (B) the mature stalks

of the plant or fiber produced from the stalks; (C) oil or cake made from the seeds of the plant; (D)

a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil,

or cake; or (E) the sterilized seeds of the plant that are incapable of beginning germination.” Id.

The trial court’s jury charge did not instruct the jury on the definition of marijuana or on the

statutory exclusions.

         The trial court is required to instruct the jury on each statutory definition that affects the

meaning of an element of the offense. Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App.

2009). Marihuana has a statutory definition, and whether a particular substance is marihuana is an

integral element of the offense of possession of marihuana. Therefore, the omission of marihuana’s

definition from the charge was error. See Hudson v. State, 179 S.W.3d 731, 739–40 (Tex. App.—

Houston [14th Dist.] 2005, no pet.) (holding trial court erred by failing to include statutory

definitions of the terms “consanguinity” and “affinity” in prosecution for assault on a family

member).

         The trial court did not err, however, in omitting an instruction on the statutory exclusions

from the definition of marihuana. Before a defendant may request an instruction that certain

materials are not included in the definition of marihuana, she must put on evidence that the
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substances alleged by the State to be marihuana contained material excluded by the statute. Elkins

v. State, 543 S.W.2d 648, 650 (Tex. Crim. App. 1976); Johnjock v. State, 763 S.W.2d 918, 920

(Tex. App.—Texarkana 1989, pet. ref’d). Pena did not present any evidence that the bundles of

marihuana found in her apartment contained any material excluded from the definition of

marihuana. Thus, even if Pena had requested a special instruction on the statutory exclusions from

marihuana, she would not have been entitled to the instruction. See Elkins, 543 S.W.3d at 650.

        Because Pena did not object to the trial court’s failure to define marihuana in its charge,

we may reverse her conviction only if she suffered egregious harm from that omission. Ngo v.

State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005); Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984). “Errors that result in actual, egregious harm are those that affect ‘the very basis

of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive theory.’”

Ngo, 175 S.W.3d at 750.

        At trial, Pena’s defensive strategy was to show that she did not intentionally or knowingly

possess the marihuana. There was never a suggestion in evidence or in argument that the bundles

seized from Pena’s apartment contained any substance other than marihuana. Therefore, the trial

court’s failure to instruct the jury on the definition of marijuana did not affect the very basis of the

case against Pena, deprive her of a valuable right, or vitally affect her defensive theory of the case.

We hold the omission of the definition of marihuana from the jury charge did not result in

egregious harm to Pena. See Hudson, 179 S.W.2d at 740 (holding omission of statutory definitions

of “common-law marriage,” “consanguinity,” and “affinity” from jury charge did not constitute

egregious harm).

            •   Limiting instruction

        When 404(b) evidence is admitted at trial, the court must, if the defendant requests, give a

limiting instruction to the jury that they may not consider such evidence unless they believe beyond
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a reasonable doubt the defendant committed those acts. Ex parte Varelas, 45 S.W.3d 627, 631

(Tex. Crim. App. 2001). The trial court must also submit a limiting instruction in the jury charge.

Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001). However, if no instruction is

given at the time of the evidence’s admission, the trial court should not submit a limiting

instruction in its charge. Id. Pena did not request a limiting instruction when 404(b) evidence was

admitted. The trial court had no obligation to submit a limiting instruction in its charge. See id.

                                           SENTENCING

       Pena contends the trial court erred when it ordered her to serve her sentence for this

conviction consecutively to a federal sentence. The federal sentence was imposed pursuant to her

conviction for being found in the United States after she had previously been deported. See

8 U.S.C. § 1326. The State concedes Pena’s point of error has merit and should be sustained.

Accordingly, we modify the trial court’s judgment to delete the consecutive sentencing order.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       In her final point of error, Pena argues her counsel provided ineffective assistance of

counsel in violation of the Sixth Amendment. To prevail on her claim, Pena must show by a

preponderance of the evidence 1) that her trial counsel’s performance was deficient and 2) that her

counsel’s deficient performance prejudiced Pena’s defense. See Strickland v. Washington, 466

U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). “Any allegation

of ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). “Under normal circumstances, the record on direct appeal will not be sufficient to show

that counsel’s representation was so deficient and so lacking in tactical or strategic decisionmaking

as to overcome the presumption that counsel’s conduct was reasonable and professional.” Bone,

77 S.W.3d at 833.
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       Pena has identified five alleged deficiencies in her counsel’s performance.

       First. One of the witnesses at trial required an interpreter to translate to and from Spanish.

Pena complains her counsel was ineffective because the interpreter did not take an oath or

affirmation prior to translating testimony as required by the rules of evidence and her counsel did

not request that the interpreter be asked to do so. See TEX. R. EVID. 604. The record does not reflect

why her counsel did not make such a request, and Pena does not explain how his lack of such a

request prejudiced her defense.

       Second. When the State rested after presenting its evidence, Pena’s counsel moved for a

directed verdict of acquittal on the ground that the State had not offered any evidence of Pena’s

intent or knowledge. Pena complains her counsel was ineffective because he did not also ask for a

directed verdict on the ground that none of the marijuana seized from the apartment had been

admitted into evidence. Pena offers no argument or authority to explain why she would have been

entitled to a directed verdict on that ground, and the record does not indicate her counsel’s reasons

for not doing so.

       Third. Pena complains her counsel was ineffective because he did not object to the jury

charge on the basis that it failed to conform to the indictment. Pena does not explain how the jury

charge may have failed to conform to the indictment, and any such deficiency is not self-evident

from the record.

       Fourth. Pena complains her counsel was ineffective because, although he objected to the

admission of 404(b) evidence, he did not request a limiting instruction from the trial court on the

occasions when such evidence was nevertheless admitted. His failure to request limiting

instructions in the guilt/innocence phase may support a finding of deficient performance. See Ex

parte Varelas, 45 S.W.3d at 632.



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       Fifth. Pena complains her trial counsel was ineffective because he did not object at the

punishment phase when the State introduced evidence Pena had been convicted in federal court of

a crime that occurred after the date of the possession charge. She cites only to Diremiggio v. State

as authority that the conviction should not have been admitted. 637 S.W.2d 926 (Tex. Crim. App.

1982). That case dealt with the State’s burden to prove a prior offense for enhancement purposes,

and is not applicable to Pena’s case. Pena has not shown the evidence was inadmissible.

       Pena has identified one ground upon which her trial counsel could arguably be found to

have performed below an objectively reasonable level of representation. The record is silent on the

reasons why Pena’s counsel did not request an instruction. We conclude Pena has not overcome

the presumption that her counsel’s conduct was reasonable and professional without her counsel

being given the chance to explain his acts or omissions. See Ex parte Varelas, 45 S.W.3d at 632.

                                          CONCLUSION

       We modify the trial court’s judgment to delete the requirement that Pena serve her state

sentence consecutively to her federal sentence, and affirm the trial court’s judgment as modified.

                                                  Luz Elena D. Chapa, Justice

Do Not Publish




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