Affirmed and Memorandum Opinion filed March 26, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00151-CR

                    KAREEM MCCANE HUEY, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 351st District Court
                            Harris County, Texas
                        Trial Court Cause No. 1333336

                 MEMORANDUM                      OPINION


      A jury convicted appellant Kareem McCane Huey of aggravated robbery
with a deadly weapon. The trial court sentenced appellant to confinement for 33
years in the Institutional Division of the Texas Department of Criminal Justice.
Appellant filed a timely notice of appeal. We affirm.

      In a single issue, appellant argues the trial court erred in the punishment
phase by admitting evidence relating to a juvenile probation. The State questioned
appellant about whether he had been placed on probation as a juvenile. The record
reflects that appellant objected and the trial court stated: “I am going to overrule
the objection. I’m going to give this jury an instruction to disregard the last
question and answer by the prosecutor to the defendant.” The following exchange
then occurred:

      [Defense Counsel]: Now, you are going to instruct the jury to
      disregard?
      THE COURT: I am.
      [Defense Counsel]: Judge, I suggest that no instruction can cure it and
      I’d ask for a mistrial.
      THE COURT: That will be denied.
      ...
      THE COURT: . . . Ladies and gentlemen of the jury, I’m going to
      instruct you to disregard the last couple of questions by the prosecutor
      and the answers given by the defendant. You are not to consider that
      for any purpose in deliberating the case.”
Appellant complains that evidence of his prior probated sentence was not
admissible because the State failed to provide proper notice in accordance with
article 37.07 of the Texas Code of Criminal Procedure.

      We first note that the trial court’s instruction to the jury to disregard the
State’s questions and appellant’s answers related to the probated sentence is at
odds with the court’s evidentiary ruling. Appellant does not assign error to the trial
court’s denial of the motion for mistrial. Thus, even if we were to determine that
the trial court erred in admitting the evidence, we also would conclude that such
error is harmless in light of the curative instruction. See Ovalle v. State, 13 S.W.3d
774, 783 (Tex. Crim. App. 2000) (holding that “[o]rdinarily, a prompt instruction
to disregard will cure error associated with an improper question and answer, even
one regarding extraneous offenses”).

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      We turn to whether appellant’s prior probated sentence was admissible
without the article 37.07 notice from the State. Section 3(g) of article 37.07
provides:

      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. If the attorney
      representing the state intends to introduce an extraneous crime or bad
      act that has not resulted in a final conviction in a court of record or a
      probated or suspended sentence, notice of that intent is reasonable
      only if the notice includes the date on which and the county in which
      the alleged crime or bad act occurred and the name of the alleged
      victim of the crime or bad act. 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). The State argues that under Jaubert
v. State, 74 S.W.3d 1 (Tex. Crim. App. 2002), the probated sentence was
admissible without notice because it was introduced during cross-examination to
rebut appellant’s testimony. In Jaubert, the high court held “[t]he extraneous
offense evidence in this case was introduced during cross-examination and rebuttal
testimony, not in the State’s case-in-chief. Therefore, appellant was not entitled to
notice of the extraneous offenses.” Id. at 4.

      The record reflects that during direct examination in the punishment phase,
appellant volunteered this statement: “I’ve never been on probation or anything.”
Thus appellant was not entitled to notice of the extraneous offense before it was
introduced during cross-examination. See Morales v. State, 389 S.W.3d 915, 920
(Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding the State was not
required to give notice of extraneous offenses referred to during cross-examination
under article 37.07). We therefore conclude the trial court did not abuse its

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discretion in overruling appellant’s objection. See Weatherred v. State, 15 S.W.3d
540, 542 (Tex. Crim. App. 2000).

      Appellant’s issue is overruled and the judgment of the trial court is affirmed.




                                       /s/       Sharon McCally
                                                 Justice



Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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