      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00186-CR



                                     Ramiro Rea, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
        NO. D-1-DC-10-301285, HONORABLE DAVID CRAIN, JUDGE PRESIDING



                            MEMORANDUM OPINION

               A jury found appellant, Ramiro Rea, guilty of robbery, and he pleaded true to an

enhancement for a prior felony conviction. See Tex. Penal Code Ann. §§ 12.42 , 29.02(West 2011).

Following the punishment phase of trial, at which the State presented evidence of appellant’s past

criminal offenses and gang membership, the jury assessed appellant’s punishment at 14 years in

prison. Appellant asserts, in a single issue, that he was deprived of his right to fair notice by the

State’s untimely disclosure of its intent to present punishment evidence of appellant’s gang

membership. We will affirm the conviction.


                                         BACKGROUND

               Appellant was charged with robbery stemming from an altercation that took place on

May 29, 2010. On that evening, two men confronted complainant Rodolfo Mora outside a grocery

store and demanded money from him. When Mora refused, one of the men struck Mora, and a fight
ensued. Mora was repeatedly hit and kicked by the two men. The two assailants took 100 dollars

from Mora’s pocket, as well as his wallet, and fled the scene. Mora and other witnesses to the

robbery described one of the assailants as a male who was wearing a white t-shirt and had tattoos on

his right arm. Mora identified appellant in a photographic lineup as the man with the tattoos and the

white t-shirt.

                 On January 27, 2011, eight business days before the commencement of trial, appellant

filed three motions with the court. The first, entitled “Accused’s Motion for Discovery,” requested

that the court instruct the State to produce “All character evidence sought to be admitted by the State

during the guilt/innocence and/or punishment phases of this case under Texas R. Crim. Evid. 404(a),

(b) and (c).” The court did not sign an order or otherwise rule on the motion.

                 The second motion, entitled “Defendant’s Motion for Notice,” requested that the

Court order the attorney for the State (1) to give notice, pursuant to Rule 404(b) of the Texas Rules

of Evidence, of “its intent to produce evidence in its case in chief of any other crimes, wrongs, or

acts allegedly committed by the defendant other than those alleged in the indictment . . . ”; and (2) to

give notice, pursuant to article 37.07 of the Code of Criminal Procedure, of “its intent to introduce,

at the punishment phase of the trial, evidence of extraneous crimes or bad acts allegedly committed

by the defendant.” The court did not rule on this motion and did not sign any order.

                 The final motion, like the first two, was directed to the trial court and was entitled

“Rule 404(b) Request for Notice of Intent to Offer Extraneous Conduct.” Despite the title, the

motion stated that it was filed pursuant to Rule 404(b) as well as article 37.07 and asked the court

to “order the State to give notice of its intention to introduce such evidence, if any” of extraneous



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crimes, conduct, or bad acts by the defendant. Again, the court did not rule on the motion or sign

an order.

                On February 3, 2011, five days before the trial began, the State filed a notice of intent

to introduce evidence of extraneous conduct during the guilt and punishment phases of the trial. This

notice gave reference to 16 criminal offenses, but it did not mention anything about gang

membership. Appellant’s gang membership was not mentioned until the first day of trial, February

8, 2011. Before the trial began, the prosecutor explained that he had just learned from one of the

State’s witnesses that appellant had a tattoo indicating membership in Tango Blast, a prison gang.

The prosecutor emphasized that the State had only learned of appellant’s alleged gang membership

that morning but indicated that it intended to photograph the tattoos and introduce the photos as

evidence of appellant’s gang membership during the punishment phase of the trial. Appellant

objected, asserting that he had made a proper request for notice under article 37.07(3)(g) and that the

State had not provided appellant reasonable notice of its intent to introduce evidence of appellant’s

gang membership. The trial court did not rule on the objection at that time, and appellant did not

move for a continuance. That evening, the State photographed appellant’s tattoos.

                The next day, before the commencement of the punishment phase of the trial,

appellant reasserted his objection that he had not received reasonable notice from the State. Noting

that appellant did not assert any bad faith on behalf of the State, the trial court overruled appellant’s

objection. The State subsequently called two witnesses who testified that appellant’s tattoos

indicated that he was a member of both the prison gang known as Tango Blast and the Crips street

gang. The defense called appellant’s mother as its only witness. She testified that appellant’s bad



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behavior should be blamed on her because she had beaten him as a child. She testified that her abuse

had made her son violent and had driven him to become a gang member.


                                          DISCUSSION

               Following a timely request by the defendant, the State must provide reasonable notice

of its intent to introduce evidence of extraneous conduct, crimes, or bad acts by the defendant. See

Tex. R. Evid. 404(b) (relating to evidence of extraneous conduct introduced during guilt phase of

trial); Tex. Code Crim. Proc. Ann. art. 37.07(3)(g) (West Supp. 2012) (relating to evidence of

extraneous conduct introduced during punishment phase of trial). The purpose of these notice

requirements is to avoid unfair surprise and to allow the defense sufficient time to investigate and

prepare a defense to the extraneous conduct. See Worthy v. State, 312 S.W.3d 34, 38-39 (Tex. Crim.

App. 2010); Hernandez v. State, 176 S.W.3d 821, 825 (Tex. Crim. App. 2005). Because Rule

404(b) and article 37.07(3)(g) do not define “reasonable notice,” a court’s determination of whether

notice is reasonable depends on the facts and circumstances in each individual case. See Patton

v. State, 25 S.W.3d 387, 392 (Tex. App.—Austin 2000, pet. ref’d). The trial court’s decision to

admit evidence of extraneous conduct during the punishment phase of the trial is reviewed under an

abuse-of-discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996);

Patton, 25 S.W.3d at 394. The trial court’s decision will not be reversed if it is within the zone of

reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).




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               Because the State introduced evidence of appellant’s gang membership at the

punishment phase of trial, article 37.07(3)(g)—rather than Rule 404(b)—applies.1                 Article

37.07(3)(g) of the Texas Code of Criminal Procedure states:


       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
       Criminal Evidence . . . . 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).

               To trigger the State’s notice requirement under article 37.07(3)(g), the defendant must

choose either to serve the State directly with a request for notice or to file a motion requesting the

trial court to order such notice. See Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998).

Because a “discovery motion is not otherwise productive until it is ruled upon by the trial court,” see

Espinosa v. State, 853 S.W.2d 36, 38-39 (Tex. Crim. App. 1993) (similar analysis under Rule

404(b)), a request for notice in the form of a motion must be signed and ruled on by the trial court

in order to trigger the State’s obligation to give notice. See Mitchell, 982 S.W.2d at 427. To hold

otherwise would ignore the differences between the legal underpinnings of motions and requests:

“[A] ‘motion’ is directed to the court and asks the court to take some action, whereas a self-operative




       1
         Although the notice requirements of article 37.07(3)(g) and Rule 404(b) are similar, a Rule
404(b) request does not apply to evidence that the State intends to introduce only at the punishment
phase of trial. See Ramirez v. State, 967 S.W.2d 919, 923 (Tex. App.—Beaumont 1998, no pet.).
However, because the notice requirements of the provisions are similar, case law regarding the notice
requirements of Rule 404(b) is persuasive for the resolution of article 37.07(3)(g) issues. See
President v. State, 926 S.W.2d 805, 808 (Tex. App.—Austin 1996, pet. ref’d).

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‘request’ is directed to a party and instructs the 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) (emphasis in original). Hence, until a motion requesting notice from the State is ruled on, it

cannot be assumed that the State has knowledge of the request, and no notice from the State

is required.

               Here, appellant failed to properly request notice as contemplated by article

37.07(3)(g). Instead, all three of appellant’s requests were in the form of discovery motions

addressed to the trial court. The motions requested and required action by the court. Because the

trial court did not rule on these motions, they never became effective and were insufficient to require

notice from the State under article 37.07(3)(g). Because appellant failed to request notice from the

State directly, the State was not required to provide notice. Therefore, the trial court did not err in

admitting the extraneous evidence.2

               Moreover, even if appellant’s request had been proper and the State had been required

to provide notice, the notice provided by the State here would have been reasonable because the State

gave notice immediately after it learned of appellant’s alleged gang membership. Nothing in the

record suggests that the State knew of appellant’s gang membership before February 8, and appellant




       2
          Appellant asserts that when the State gave notice of its intent to introduce evidence of his
prior criminal offenses, the State was treating his motions as proper requests under article
37.07(3)(g). Therefore, appellant asserts that the State should be estopped from arguing that his
request was improper under article 37.07(3)(g). However, because appellant failed to make a proper
request under article 37.07(3)(g), and because the State was therefore not required to provide notice,
appellant “cannot complain of the timeliness or adequacy of the notice that the State did give.”
Smith v. State, No. 03-97-00795-CR, 1999 WL 314755, at *3 (Tex. App.—Austin May 20,1999, pet.
ref’d) (mem. op., not designated for publication).

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does not allege that the State possessed this information before trial. Texas courts have consistently

found the State’s notice to be reasonable when it is given immediately following the State’s

discovery of the extraneous conduct. See West v. State, No. 03-05-00371-CR, 2008 WL 4899189,

at *6 (Tex. App.—Austin Nov. 14, 2008, pet. ref’d) (mem. op., not designated for publication)

(notice given immediately upon discovering new evidence was reasonable when given five days

before trial); Henderson v. State, 29 S.W.3d 616, 625 (Tex. App.—Houston [1st Dist.] 2000, pet.

ref’d) (notice given immediately upon discovering new evidence was reasonable when given eight

days before evidence was introduced); Patton, 25 S.W.3d at 393 (notice given immediately upon

discovering new evidence was reasonable when given two days before trial). The State cannot be

required to give notice of its intent to use extraneous conduct before it has knowledge of such

conduct. In any event, appellant’s failure to file a motion for continuance waived his right to

complain that he was surprised by the State’s intent to introduce evidence of his gang membership.

               We hold that the trial court did not abuse its discretion in admitting the evidence of

appellant’s gang membership because (1) appellant did not obtain a ruling from the trial court on his

motion, nor did he make a request to the State directly, and the State was therefore not required to

provide notice, and (2) even if notice was required, the notice provided by the State was reasonable

because the State gave notice as soon as was possible, and appellant failed to seek a continuance.

We overrule appellant’s appellate issue.


                                           CONCLUSION

               Having overruled appellant’s sole issue, we affirm the judgment of conviction.




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                                           _____________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Henson and Rose

Affirmed

Filed: August 14, 2012

Do Not Publish




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