                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00416-CR

JOHN DAVID WAGUESPACK,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 19th District Court
                            McLennan County, Texas
                            Trial Court No. 2012-46-C1


                          MEMORANDUM OPINION


      A jury convicted Appellant John David Waguespack of sexual assault and

assessed his punishment, enhanced by a previous felony conviction, at life imprisonment.

This appeal ensued. In his sole issue, Waguespack contends that the trial court abused

its discretion during the punishment phase by admitting evidence of a prior sexual

encounter between himself, his roommate Andrew Kennedy, and an unidentified female.

      On April 5, 2012, the trial court signed an agreed discovery order, which included

the following provision: “The State shall provide written notice of extraneous crimes and
bad acts or convictions pursuant to Texas Rules of Evidence 609(f) and 404(b) and Arts.

37.07 and 38.37 of the Texas Code of Crim. Proc.” Thereafter on June 25, 2013, the State

filed its “Notice of Intent to Offer Evidence Pursuant to Rule 404(b) and Rule 609(f) of the

Texas Rules of Evidence and Article 37.07 of the Texas Code of Criminal Procedure.” It

did not include notice of intent to offer evidence of the prior sexual encounter between

Waguespack, Kennedy, and an unidentified female.               The State filed its “First

Supplemental Notice of Intent to Offer Evidence Pursuant to Rule 404(b) and Rule 609(f)

of the Texas Rules of Evidence and Article 37.07 of the Texas Code of Criminal Procedure”

on November 12, 2013. It included that the State may offer evidence that “[o]n or about

[the] 1st day of January 2010 and on numerous occasions thereafter, the Defendant

engaged in sexual competitions with Andrew Kennedy and has attempted to get females

intoxicated in order to participate in sex.” Voir dire was then conducted the same day

that the first supplemental notice was filed. The guilt-innocence phase of Waguespack’s

trial began the next day, November 13, 2013.

       On November 19, 2013, during the punishment phase, Andrew Rangel testified

that he, Waguespack, and Kennedy had been roommates. He had not been surprised by

the allegations against Waguespack. While he, Waguespack, and Kennedy were living

together, Waguespack and Kennedy had had a contest to see who could “bed the most

females.” A couple of times, Waguespack and Kennedy “both joined in.” He did see

something “inappropriate” when one lady was in the house.

       At that point, a hearing was conducted outside the presence of the jury, during

which the following exchange occurred:

Waguespack v. State                                                                   Page 2
                     THE COURT: ….
                     We’re outside the presence and hearing of the jury. Would
       you-all repeat the question you just asked so the record is clear about where
       we are?

                     [Prosecutor]: I don’t remember my exact verbiage, Your
       Honor, but I was asking about was there a situation regarding this
       defendant and their other roommate, Andy, in which this witness observed
       interactions between the defendant, Andy, and a female in their house. I
       was going to go into how this defendant and his roommate would attempt
       to get women drunk in order to be able to do whatever they wanted, and
       he was a witness to that situation, which is clearly covered in Number 13
       on the State’s - -

                      [Defense Counsel]:   That is absolutely not covered, Your
       Honor.

                      THE COURT: Wait a minute. Let me see you-all’s list again.

       ….

                    [Defense Counsel]: Just to make sure, can we read what we’re
       talking about just to be clear what was disclosed to me?

                      THE COURT: This is the State’s First Supplemental Notice of
       Intent to Offer Evidence pursuant to Rule 404(b) and Rule 609(f) of the
       Texas Rules of Evidence and Article 37.07 of the Texas Code of Criminal
       Procedure. This was filed on November 12th. Number 13 on that list says,
       “On or about the 1st day of January 2010, and on numerous occasions
       thereafter, the defendant engaged in sexual compositions [sic] with Andrew
       Kennedy and has attempted to get females intoxicated in order to
       participate in sex.”

                      [Defense Counsel]: Your Honor - -

                    THE COURT: First of all, let me hear the question and
       answer, and then I’ll take your objection, [Defense Counsel].
                    All right. Go ahead.

             Q.     (BY [Prosecutor]) Andrew, so tell the judge on that night
       when you observed this defendant, Andy, your other roommate, as well as
       a female - - I believe it was in your kitchen - - tell the judge what you
       observed that night.

Waguespack v. State                                                                    Page 3
               A.    Well, I had come out from my room to go outside, and they
       had been - - Andy had his door open - - his doors open. I saw them both
       embracing the lady in question. I went outside. They both came out later
       in their boxers, and they asked me if I had any Viagra because they couldn’t
       perform in front of each other, and I went back inside, and she was in the
       kitchen, and we were talking, and they both came back in. The defendant,
       John, he poured a glass of - - I think it was whiskey or something like that
       and offered it to her. She said no, that she had already had too much to
       drink, and he put it to her lips and basically forced her to drink it. And at
       that point I was kind of concerned, but then after she finished drinking it,
       she told him that she wanted them both in the same night. John forcibly
       told her to make him hard - - well, to make - - he said, “Make us hard.”

             Q.    And, additionally, did the defendant make any comments to
       you about women and getting them drunk?

               A.     Yes. I was talking to this lady that I had been involved with
       for a couple of months. I would take her out on dates, and she came over
       to my house, and I was telling them how she was coming over to watch a
       movie with me, and he asked me if I had gotten anywhere with her, and I
       said, I’ve kissed her on the cheek, and he said, “What you need to do is go
       buy alcohol and get her drunk” and then I can do anything I want with her.

                      THE COURT:      You’re describing two different situations
       here?

                      THE WITNESS: Yes, sir.

                   THE COURT: The time frame for this incident you just
       described about the lady being over with your roommate and the
       defendant, when did that happen?

                      THE WITNESS: My friend coming over and him telling me
       to do that, that was in probably November, December-ish.

                      THE COURT: Of what year?

       ….

             A.     … The episode in question was late 2009, and then the other
       episode was in, I believe, the summer of 2011.


Waguespack v. State                                                                    Page 4
               Q,     And the other episode being the threesome situation?

               A.     Yes, yes.

              Q.      So that would have been a few months before this event, this sexual
       assault?

               A.     Yeah, yeah.

                      THE COURT: All right. Your objection, [Defense Counsel]?

                     [Defense Counsel]: Your Honor, my objection is that the specific
       incident wasn’t disclosed, but the general competition and trying to get girls
       drunk. It has no mention of this particular girl. The specific incident he
       supposedly saw doesn’t include that. And second, Your Honor, we got this notice
       - - the amended notice. We got all the other notices other than Number 13 on that,
       which I believe is Number 13 that refers to - - the one that was just read into the
       record regarding Mr. Rangel’s testimony. And, Your Honor, I object in general.
       This is something we got notice of the day trial started, and we’ve been in trial the
       entire week, and I haven’t been given any opportunity to investigate this based on
       the short notice we got, and now that they are trying - - this is the second time
       they have got into something specifically outside of that, and I object to this
       witness’ testimony going forward at all.

       ….

                     [Defense Counsel]: … This specific incident was not disclosed, and,
       Your Honor, I object on the amount of notice was not reasonable to get into
       anything they are talking about at this point. I just ask that this entire witness’
       testimony be stricken from the record and ask the jury be asked not to consider it
       based on the improper notice, not enough time, and also the fact that they are
       getting into things that are completely unrelated to the notice they actually gave
       me on the first day of trial.

                      THE COURT: It was filed on November 12th. This is November
       19th.

                      [Prosecutor]: Yes, sir.

                      THE COURT: All right. The objection is overruled.

                      [Defense Counsel]: Your Honor, does that objection allow them to
       get into the specific incident of conduct?

Waguespack v. State                                                                   Page 5
                     THE COURT: I’m going to allow them to get into the testimony this
       witness has just testified to outside the presence of the jury.

                      [Defense Counsel]: Your Honor, may I have a running objection to
       all that testimony?

                      THE COURT: You may.

                     [Defense Counsel]: And all the testimony - - any further testimony
       by this witness, period.

                      THE COURT: What else are we going to get into?

                      [Prosecutor]: That’s what I was going to tell you, Judge. The only
       other thing besides what we’ve just discussed that I was going to go into with this
       witness was the fact that at one point in time he had a friend of his that had started
       talking to the defendant and he told her to stay away from him. There is no specific
       instances of bad conduct. It was his opinion that he didn’t want his friend dating
       this defendant.

       ….

                      [Defense Counsel]: It’s not relevant either, Your Honor. His opinion
       about what he wants his friend to talk to is not relevant to any issues that are on
       the subject of this trial.

       ….

                      THE COURT: It’s overruled.

                    [Defense Counsel]:      May I ask for a running objection to that
       testimony as well?

                      THE COURT: Yes.

The jury was then brought back in, and Rangel testified accordingly.

       Waguespack first complains that the trial court abused its discretion in

determining that the evidence of the prior sexual encounter between himself, Kennedy,




Waguespack v. State                                                                    Page 6
and the unidentified female was relevant. He also argues that even if the evidence is

relevant, its probative value was outweighed by the danger of unfair prejudice.

       Preservation is a systemic requirement on appeal. Ford v. State, 305 S.W.3d 530,

532 (Tex. Crim. App. 2009). It is the duty of the appellate courts to ensure that a claim is

preserved for review before addressing its merits. See id. at 532-33. General objections

do not normally preserve claims for review. Bunton v. State, 136 S.W.3d 355, 367 (Tex.

App.—Austin 2004, pet. ref’d). In general, a claim is preserved for appellate review only

if (1) the complaint was made to the trial court by a timely and specific request, objection,

or motion, and (2) the trial court either ruled on the request, objection, or motion or

refused to rule and the complaining party objected to that refusal. TEX. R. APP. P. 33.1(a);

Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). Furthermore, the issue raised

on appeal must correspond to the objection made at trial. Dixon v. State, 2 S.W.3d 263,

265 (Tex. Crim. App. 1998).

       In this case, Waguespack did not make a relevance objection or a Rule 403

objection to the evidence of the prior sexual encounter between himself, Kennedy, and

the unidentified female. Waguespack’s relevance objection was made only to Rangel’s

testimony that he did not want his friend dating Waguespack. Waguespack has therefore

failed to preserve his relevance and Rule 403 claims for review. See TEX. R. APP. P. 33.1(a).

       Waguespack next argues that the State gave inadequate notice to the defense of

the evidence of the prior sexual encounter between himself, Kennedy, and an

unidentified female. Waguespack claims that tendering notice of the evidence on the



Waguespack v. State                                                                    Page 7
morning that trial began is the very situation article 37.07, section 3(g) seeks to prevent.

       Article 37.07, section 3(a) of the Code of Criminal Procedure provides:

       [E]vidence may be offered by the state and the defendant as to any matter
       the court deems relevant to sentencing, including but not limited to the
       prior criminal record of the defendant, his general reputation, his character,
       an opinion regarding his character, the circumstances of the offense for
       which he is being tried, and, notwithstanding Rules 404 and 405, Texas
       Rules of Evidence, any other evidence of an extraneous crime or bad act
       that is shown beyond a reasonable doubt by evidence to have been
       committed by the defendant or for which he could be held criminally
       responsible, regardless of whether he has previously been charged with or
       finally convicted of the crime or act.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (West Supp. 2014). But article 37.07, section

3(g) requires that “[o]n 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.” Id. art. 37.07, § 3(g). Rule 404(b) states in relevant part that the

State must give “reasonable notice” “in advance of trial” of its intent to introduce

evidence of extraneous conduct. TEX. R. EVID. 404(b).

       We assume without deciding that the State gave inadequate notice to Waguespack

of its intent to introduce the evidence of the prior sexual encounter between him,

Kennedy, and an unidentified female. We therefore assume without deciding that the

trial court abused its discretion during the punishment phase by admitting evidence of

the prior sexual encounter between Waguespack, Kennedy, and an unidentified female.

We conclude, however, that any error was harmless.

       “The admission of an extraneous offense into evidence during the punishment

phase when the State failed to provide notice required by statute is non-constitutional


Waguespack v. State                                                                     Page 8
error.” Gonzalez v. State, 337 S.W.3d 473, 485 (Tex. App.—Houston [1st Dist.] 2011, pet.

ref’d); Ruiz v. State, 293 S.W.3d 685, 695 (Tex. App.—San Antonio 2009, pet. ref’d); see

Hernandez v. State, 176 S.W.3d 821, 825 (Tex. Crim. App. 2005) (analyzing harm in failure

to provide 404(b) notice under rule 44.2(b)). An appellate court may reverse a judgment

of punishment based on non-constitutional error only if that error affected the

defendant’s substantial rights. TEX. R. APP. P. 44.2(b).

       The purpose of article 37.07, section 3(g) is to prevent unfair surprise to the

defendant and to enable him to prepare to answer the extraneous-offense evidence that

the State plans to introduce at trial. Apolinar v. State, 106 S.W.3d 407, 414 (Tex. App.—

Houston [1st Dist.] 2003), aff’d on other grounds, 155 S.W.3d 184 (Tex. Crim. App. 2005); see

Hernandez, 176 S.W.3d at 823-24. To determine harm in light of the purpose of article

37.07, section 3(g), we must therefore analyze whether and how the notice deficiency

affected Waguespack’s ability to prepare for the evidence. Apolinar, 106 S.W.3d at 414;

Roethel v. State, 80 S.W.3d 276, 282 (Tex. App.—Austin 2002, no pet.). Specifically, we

examine the record to determine whether the deficient notice resulted from prosecutorial

bad faith or prevented Waguespack from preparing for trial. Roethel, 80 S.W.3d at 282.

In determining the latter, we will look at whether Waguespack was surprised by the

substance of the testimony and whether that affected his ability to prepare cross-

examination or mitigating evidence. Id. “A defendant may demonstrate surprise by

showing how his defense strategy might have been different had the State explicitly

notified him that it intended to offer the extraneous-offense evidence.” Allen v. State, 202

S.W.3d 364, 369 (Tex. App.—Fort Worth 2006, pet. ref’d) (discussing rule 404(b) notice)

Waguespack v. State                                                                    Page 9
(citing Hernandez, 176 S.W.3d at 826). Error in admitting evidence in violation of a notice

requirement does not have an “injurious” effect on the verdict if the defendant was not

surprised by the evidence. See Hernandez, 176 S.W.3d at 825 (holding that evidence

admitted in violation of rule 404(b)’s notice requirement is not harmful if defendant was

not surprised by evidence).

       In this case, Waguespack was notified about five months before trial through the

State’s witness list that Rangel and/or Kennedy might be called to testify. In response to

the State’s suggestion otherwise, Waguespack’s counsel stated that an investigator had

gone to Rangel’s house on four separate occasions when Rangel’s car was in the driveway

but that the investigator never got a response and was never able to talk to Rangel. As

stated above, the State then filed its “First Supplemental Notice of Intent to Offer

Evidence Pursuant to Rule 404(b) and Rule 609(f) of the Texas Rules of Evidence and

Article 37.07 of the Texas Code of Criminal Procedure” on November 12, 2013. It

included that the State may offer evidence that “[o]n or about [the] 1st day of January

2010 and on numerous occasions thereafter, the Defendant engaged in sexual

competitions with Andrew Kennedy and has attempted to get females intoxicated in

order to participate in sex.” Rangel, however, did not testify until seven days after the

notice was given. When Waguespack objected to the evidence, the State explained, “It

was new information to us.”

       Waguespack has not asserted how his defense strategy might have been different

had the State notified him earlier of its intent to introduce the evidence. Instead,

Waguespack argues in his brief that the evidence was harmful because other evidence

Waguespack v. State                                                                 Page 10
was such that a reasonable juror could have had a reasonable doubt as to the elements of

the sexual assault and that Rangel’s testimony about “a consensual sexual encounter

among three adults” was “merely used to inflame the jury.” But as our sister court has

explained, “focusing on the degree of prejudice created by the erroneous admission of

the evidence is a different harm analysis employed for violations of the rules of evidence

concerning relevancy, and is not appropriate here where our inquiry is limited to the

harm caused by the State’s inadequate notice.” See Camacho v. State, No. 04-06-00713-CR,

2007 WL 3270766, at *4 (Tex. App.—San Antonio Nov. 7, 2007, no pet.) (mem. op., not

designated for publication) (citing Hernandez, 176 S.W.3d at 824-25).

       Because the record does not reveal that the deficient notice was the result of

prosecutorial bad faith and because the record shows that the deficient notice did not

impair Waguespack’s ability to prepare for the evidence or otherwise present a defense,

we conclude that the deficient notice did not affect Waguespack’s substantial rights. We

therefore overrule Waguespack’s sole issue and affirm the trial court’s judgment.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 18, 2015
Do not publish
[CRPM]




Waguespack v. State                                                                 Page 11
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