                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-12-00498-CR


                           ADAM J. BENITEZ, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 137th District Court
                                  Lubbock County, Texas
        Trial Court No. 2011-432,812, Honorable John J. "Trey" McClendon, Presiding

                                   October 22, 2013

                            MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant Adam J. Benitez appeals his conviction of burglary of a habitation with

intent to commit sexual assault. His sole issue concerns whether the trial court erred in

admitting into evidence five photographs taken by appellant’s girlfriend who was the

assault victim. The photos depicted injuries suffered by her during a prior extraneous

offense for which appellant was convicted. That offense and conviction involved the

kidnapping by appellant of his girlfriend. We affirm the judgment.
        Appellant pled guilty in 2010 to kidnapping his girlfriend Regina Rodriguez in

2009.     She also obtained a protective order against him.     However, while he was

serving time in prison for that offense, Rodriguez continued to maintain contact with

appellant and to seek a relationship with him. When he was released on parole in 2011,

Rodriguez and appellant re-established their relationship in violation of the terms of his

parole.    On August 31, 2011, appellant and Rodriguez argued.         Appellant broke a

window, entered Rodriguez’ home without permission, and sexually assaulted her.

        During trial, the State notified the court that it had been provided that morning

with photographs taken by Rodriguez on her cell phone of injuries she received at the

hands of appellant during the 2009 kidnapping. Appellant objected to the admission of

those pictures on the basis that he had not seen the photographs prior to that morning.

The court overruled the objection, and the photographs were admitted.

        On appeal, appellant argues that he received insufficient notice from the State in

violation of Texas Rule of Evidence 404(b) and the federal and state constitutions. Rule

404(b) provides that evidence of other crimes may be admissible provided that ―upon

timely request by the accused in a criminal case, reasonable notice is given in advance

of trial of intent to introduce in the State’s case-in-chief such evidence other than that

arising in the same transaction.‖ TEX. R. EVID. 404(b).

        Rule of Evidence 404(b) is a rule of admissibility of evidence, and it is error to

admit evidence when the State has not complied with the rule. Hernandez v. State, 176

S.W.3d 821, 824 (Tex. Crim. App. 2005). However, appellant’s solicitation came in the

form of a motion requesting the court to order the State to ―give the requested notice

within thirty days after a hearing on this motion, and at least ten days prior to the



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commencement of trial.‖ It also requested that the order encompass ―the discovery of

all evidence that the State has that would be used to establish each prior crime, wrong

or act.‖ More importantly, the trial court never ruled on the motion, much less favorably

to appellant.      Such is required before the State’s duty to produce or disclose is

triggered. See Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998) (holding

that the State is not required to give notice of extraneous offenses when the court does

not rule on a discovery motion); Espinosa v. State, 853 S.W.2d 36, 38 (Tex. Crim. App.

1993); Rogers v. State, No. 02-08-479-CR, 2010 Tex. App. LEXIS 3775, at *4-5 (Tex.

App.—Fort Worth May 20, 2010, pet. ref’d) (mem. op.) (not designated for publication).

And the same is true irrespective of whether the motion can also be read as containing

a request for disclosure directed to the State. Mitchell v. State, supra; Rogers v. State,

supra.1 Consequently, we cannot say that the trial court erred in admitting the evidence

even if prior notice of the State’s intent to do so was not provided.2

        We also mention that the State provided notice on March 1, 2012 of its intent to

offer evidence of extraneous offenses related to appellant’s conviction and arrest in the

―cause in which, on April 15, 2010, in Cause No. 2009-425,308 in the 137th District

Court of Lubbock County, Texas, the defendant was convicted of the felony offense of

Kidnapping‖ and in the ―cause in which, in Cause No. 2009-540,209, in Lubbock

County, Texas, a protective order was entered that restricted this defendant from being


1
  This authority does not apply to a situation wherein the defendant simply directs a request to the State
under Rule 404. Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998); Espinosa v. State, 853
S.W.2d 36, 38 (Tex. Crim. App. 1993); Rogers v. State, No. 02-08-479-CR, 2010 Tex. App. LEXIS 3775, at
*4-5 (Tex. App.—Fort Worth May 20, 2010, pet. ref’d) (mem. op.) (not designated for publication). It
applies when the request comes in the form of or is included in a motion.
2
  Though appellant also mentioned that the lack of notice violated his constitutional rights, that aspect of
the issue was not briefed. He focused on the application of Rule 404(b). Thus, we need not address it.
Lilly v. State, 365 S.W.3d 321, 326 (Tex. Crim. App. 2012).

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around the victim, Regina Rodriguez.‖ A supplemental notice was filed on October 19,

2012 which included ―[a]ny and all facts relating to the defendant’s bad acts of assault

against the victim, Regina Rodriguez, between the dates of 2007 – present . . . .‖ This

notice was in advance of the trial which commenced with opening arguments on

October 23, 2012.      Appellant also acknowledged in his brief that the victim of the

kidnapping testified about the circumstances of that offense and the physical violence

suffered at the hands of appellant.        The pictures underlying appellant’s present

complaint illustrate the injury arising from the physical exertion appellant directed

towards the victim. Though visual evidence, as opposed to verbal, it can be said that

the subject matter of the pictures overlapped with the subject matter of the victim’s

testimony.   See McNac v. State, 215 S.W.3d 420, 424-25 (Tex. Crim. App. 2007)

(holding that harm arising from the admission of objectionable evidence is minimal when

like evidence was admitted elsewhere without objection). These circumstances lead us

to also conclude that no harm resulted from the admission of the pictures assuming

arguendo the State failed to provide appellant with reasonable prior notice of its intent to

specifically offer them.

       Accordingly, the judgment is affirmed.



                                                        Per Curiam



Do not publish..




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