Opinion issued July 7, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-15-00493-CR
                           ———————————
                  RODRICK ODELL WILLIAMS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Case No. 1373609



                       MEMORANDUM OPINION

      A jury convicted appellant, Rodrick Odell Williams, of murder and assessed

his punishment at confinement for life in the Institutional Division of the Texas

Department of Criminal Justice. In two points of error, appellant contends that the
trial court abused its discretion by (1) admitting extraneous offense evidence because

the State failed to provide notice of its intention to offer the evidence as required by

Code of Criminal Procedure article 37.07, and (2) denying his request to include a

sudden passion instruction in the jury charge. We affirm.

                                      Background

         Shortly after 6:00 a.m. on January 1, 2013, Houston Police Department

Officer Hunter was dispatched to a shooting in the 9600 block of Bissonnet, near

Cube’s Sports Bar and Ballers, two after-hour nightclubs. When Officer Hunter

arrived, he observed paramedics attending to a man lying on the ground and later

identified as the complainant, Damon Romel Williams, whom paramedics

pronounced as dead. An autopsy later revealed that Williams had been shot ten

times.

         At trial, Katerina Gutierrez testified that she and a friend went to Cube’s just

before midnight on December 31, 2012. While there, Gutierrez started talking with

appellant whom she knew by the nickname “Memphis.” Gutierrez testified that she

saw appellant and the complainant start arguing but then left the bar and went

outside.     The complainant and appellant left the bar shortly afterwards when

Gutierrez saw appellant run up behind the complainant and shoot him. Gutierrez

testified that she heard five or six shots. Gutierrez later identified appellant in a

photo array as the shooter.



                                             2
      Frank Medina, an employee at Cube’s, testified that he saw appellant who he

knew as “Memphis” at the bar in the early morning of January 1, 2013. Medina

testified that appellant and the complainant began arguing and pushing each other

whereupon two bouncers escorted them outside.             According to Medina, the

altercation was “a little bickering, a little pushing, a little shoving, but nothing

major,” and that neither appellant nor the complainant became physical or had to be

“manhandled” by the bouncers but “[t]hey just took it as, okay, we got to go.”

Medina testified that when the complainant began to walk away from appellant,

appellant went to his car, opened the trunk, and removed a gun. Medina then saw

appellant shoot the complainant approximately four or five times. Medina testified

that appellant then got in his car, drove around the parking lot, exited his car, and

shot the complainant several more times as he lay on the ground. Medina later

identified appellant in a photo line-up as the shooter.

      Clyde Benjamin, a TDCJ inmate at the time of trial, testified that on January

10, 2013, while he was at the Harris County jail awaiting processing, he recognized

appellant whom he knew as “Memphis.” Appellant had been arrested during a traffic

stop earlier that day. When Benjamin asked appellant why he was in jail, appellant

told him that it was for “dumping on someone” who had disrespected him in a bar,

which Benjamin testified is slang for shooting someone until the clip is empty.




                                          3
      Appellant presented two witnesses, Adam Daniels and Willie Jobe. Daniels

and Jobe testified that they saw the complainant get shot in the parking lot outside

the nightclubs and that appellant was not the shooter.

      At the conclusion of the guilt-innocence phase of the trial, the jury found

appellant guilty of the charged offense.

      During the punishment phase, Officer Trevino testified about the traffic stop

that led to appellant’s arrest. Trial counsel objected to the State eliciting any

testimony related to the discovery of the pistol and marijuana under the hood of

appellant’s vehicle during the stop. Trial counsel acknowledged “I am aware of [the

extraneous evidence] and it’s in the police report, we have even talked about it,” but

objected to its admission on the ground that the State had failed to provide notice as

required under Code of Criminal Procedure article 37.07. After the trial court

overruled the objection, Officer Trevino testified about discovery of the pistol.

      The State also sought to introduce photographs from appellant’s Facebook

page depicting appellant holding a firearm. Trial counsel again objected on the

ground that the State had not provided him with written notice pursuant to article

37.07. The State responded that counsel had been aware of the photos for a long

time, and counsel admitted that the State had previously shared the photographs with

him. The trial court overruled the objection and the photos were admitted.




                                           4
      Reginald Williams, appellant’s father, and Robert Harper, appellant’s

minister, testified on behalf of the defense. At the conclusion of the punishment

hearing, trial counsel informed the court that the State had just given him a list of

appellant’s numerous prior convictions in Tennessee, which included convictions

for aggravated assault and drug-related offenses, on the morning of the hearing and

that he had not known about these offenses prior to that moment. Trial counsel then

stated,

            The State acknowledged that was not part of their written notice,
      but indicated that they intend to offer those through, Did-you-know or
      have-you-heard type cross-examination questions if I presented any
      what we will call character witnesses on behalf of the defendant.

             Therefore, it is my clear trial strategy to not put on two witnesses,
      meaning Bianca Horton [appellant’s girlfriend] and his mother Tane
      Burrus, that I limited some of the questioning to Robert Harper, the
      minister, and also his father, Reginald Williams, because the worst
      thing that I could do for this defendant is to open the door that will allow
      the State to get in any of those priors.

      Trial counsel did not offer the two witnesses and the State did not attempt to

introduce the Tennessee convictions. The jury assessed appellant’s punishment at

confinement for life. This appeal followed.

                           Extraneous Offense Evidence

      In his first point of error, appellant contends that the trial court abused its

discretion in overruling appellant’s objection under article 37.07 because the State

failed to provide reasonable notice of its intention to offer extraneous offense



                                           5
evidence during the punishment phase. Specifically, he complains that the State did

not provide reasonable notice of its intent to introduce evidence of (1) the marijuana

and pistol found during the search of appellant’s vehicle, (2) photographs from

appellant’s Facebook page showing him holding a gun, and (3) appellant’s numerous

prior convictions in Tennessee.

   A. Standard of Review and Applicable Law

       We review the admission of extraneous offenses and bad acts for an abuse of

discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). We

will reverse the trial court’s decision only when it is so clearly wrong that it is outside

“the zone of reasonable disagreement.” Salazar v. State, 38 S.W.3d 141, 153–54

(Tex. Crim. App. 2001).

       The admissibility of evidence at the punishment phase of trial is governed by

Article 37.07, § 3(a)(1), which provides, in relevant part:

       Regardless of the plea and whether the punishment be assessed by the
       judge or the jury, evidence 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.




                                            6
TEX. CODE CRIM. PRO. ANN. Art. 37.07, § 3(a)(1) (West Supp. 2015). Section 3(g)

further provides 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.” See id. § 3(g).

          “The purpose of the notice requirement is to enable the defendant to prepare

to meet the extraneous offense evidence.” Roethel v. State, 80 S.W.3d 276, 282

(Tex. App.—Austin 2002, no pet.) (op. on reh’g). Any deficiency in notice is

analyzed on how it affected a defendant’s “ability to prepare for the evidence.” Id.;

see also Nance v. State, 946 S.W.2d 490, 492 (Tex. App.—Fort Worth 1997, pet.

ref’d) (explaining notice requirement avoids unfair surprise and trial by ambush).

However, the notice required under Rule 404(b) does not have to be provided in

written form. See Agbogwe v. State, 414 S.W.3d 820, 836 (Tex. App.—Houston

[1st Dist.] 2013, no pet.) (noting that although written Rule 404(b) notice provided

did not include certain extraneous acts, Rule 404(b) does not require that notice be

in writing); Blackmon v. State, 80 S.W.3d 103, 108 (Tex. App.—Texarkana 2002,

pet. ref’d). The reasonableness of the notice turns on the facts and circumstances of

each case. Segovia v. State, 467 S.W.3d 545, 553–54 (Tex. App.—San Antonio

2015, pet. ref’d); Patton v. State, 25 S.W.3d 387, 392 (Tex. App.—Austin 2000, pet.

ref’d).




                                            7
      Admitting evidence of extraneous offenses when the State has not provided

proper notice is non-constitutional error, subject to harm analysis under Texas Rule

of Appellate Procedure 44.2(b). McDonald, 179 S.W.3d at 578; TEX. R. APP. P.

44.2(b). An appellate court may reverse a judgment of conviction or punishment

based on non-constitutional error only if that error affected the defendant’s

substantial rights. TEX. R. APP. P. 44.2(b). A substantial right is affected when the

error had a substantial and injurious effect or influence in determining the jury’s

verdict. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

      When a defendant objects to the admissibility of extraneous acts based

exclusively on the State’s failure to give proper notice, reviewing courts “look only

at the harm that may have been caused by the lack of notice and the effect the lack

of notice had on the [defendant’s] ability to mount an adequate defense.” McDonald,

179 S.W.3d at 578; see also Roethel, 80 S.W.3d at 281–82 (noting that purpose of

article 37.07’s notice requirement is to enable defendant to prepare to meet

extraneous offense evidence, and that harm is assessed in view of whether statute’s

purpose was thwarted). Specifically, we consider whether the lack of reasonable

notice surprised the defense. Hernandez v. State, 176 S.W.3d 821, 823–25 (Tex.

Crim. App. 2005) (citing with approval Roethel, 80 S.W.3d at 281–82).               “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



                                          8
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) (citing Hernandez, 176

S.W.3d at 826).

    B. Analysis

      On September 7, 2014, appellant timely requested notice of the State’s intent

to introduce extraneous offense evidence and evidence of prior criminal convictions.

The State notified appellant that it intended to offer evidence regarding appellant’s

membership in the Gangster Disciple Criminal Street gang.1

      1. Gun, marijuana, and Facebook photos

      During the State’s questioning of Officer Trevino regarding the traffic stop

that led to appellant’s arrest, trial counsel objected to the State eliciting any

testimony regarding the gun and marijuana discovered under the hood of appellant’s

vehicle. Trial counsel acknowledged “I am aware of [the extraneous evidence] and

it’s in the police report, we have even talked about it,” but objected to its admission

on the ground that the State had failed to provide written notice. When the State

sought to introduce photographs from appellant’s Facebook page depicting him

holding a firearm, trial counsel again objected to the lack of written notice. The

State responded that trial counsel “has been aware of [the photos] for a long time,”


1
      We note that these pleadings do not appear in the clerk’s record. However, appellant
      has attached a copy of the documents, reflecting that they were filed with the district
      clerk’s office on September 7, 2014, in the appendix to his brief.

                                             9
and counsel admitted that he was familiar with the photos and that the prosecutor

had previously shared the photos with him. The trial court overruled the objections.

      The purpose of article 37.07, section 3(g) is to avoid unfair surprise, that is,

trial by ambush. Nance, 946 S.W.2d at 493. Here, the record demonstrates that the

prosecutor discussed the pistol, marijuana, and Facebook photos with counsel before

trial, and that counsel acknowledged to the court that he had actual notice of the

evidence. See Agbogwe, 414 S.W.3d at 836 (noting that Rule 404(b) does not require

that notice be in writing); see also Barnstein v. State, No. 02-04-442-CR, 2006 WL

59400, at *7 (Tex. App.—Fort Worth Jan. 12, 2006, pet. ref’d) (mem. op., not

designated for publication) (concluding trial court did not abuse its discretion when

it determined that State had provided reasonable notice to defense of its intent to

introduce extraneous bad acts where record showed prosecutor had provided oral

notice to trial counsel and offense report included information regarding extraneous

offenses). Further, we note that the State did not elicit any testimony from Officer

Trevino regarding the marijuana. The trial court did not abuse its discretion in

determining that the State provided appellant with reasonable notice of its intent to

introduce evidence regarding the gun, marijuana, and Facebook photos.

      2. Tennessee convictions

      Appellant also complains that the State failed to provide reasonable notice of

its intent to introduce evidence of his numerous prior convictions in Tennessee.



                                         10
      At the punishment hearing, trial counsel called appellant’s father and

appellant’s minister to testify on behalf of the defense. At the conclusion of the

hearing, counsel informed the court that the State had only provided him a written

list of appellant’s numerous prior convictions in Tennessee on the morning of the

hearing, which included felony convictions for aggravated assault and drug-related

offenses. Counsel informed the court that, as a result of the deficient notice, his trial

strategy was to not call two witnesses and that he had limited his examination of the

other two witnesses.

      Appellant argues on appeal that the State’s failure to provide reasonable notice

and its expressed intention to use the Tennessee convictions to impeach his witnesses

thwarted presentation of his defense because he did not call two witnesses and

limited his examination of the two he did call in order to not “open the door” to those

prior convictions.2

      A review of the record reveals that the State did not introduce the Tennessee

convictions at the punishment hearing, and therefore, counsel did not object to their

admission and the trial court did not rule on their admissibility.3 Consequently, there


2
      The State does not address appellant’s argument regarding the Tennessee
      convictions in its brief.
3
      The written list of appellant’s prior Tennessee convictions about which appellant
      complains are not part of the record before us. However, the record reflects that
      counsel informed the court that the State had provided a list of appellant’s Tennessee
      convictions on the morning of the hearing, and the State did not dispute the

                                            11
is no trial court ruling before us to review. We also note that, other than a general

assertion that he “could have prepared a different defense for punishment, or could

have simply prepared those witnesses for the questions they were likely to face,”

trial counsel made no proffer as to what his witnesses’ testimony would have been

had they testified or how he would have modified his trial strategy had he been

provided reasonable notice of the State’s intent to introduce the convictions. Further,

the record does not reflect that trial counsel requested a continuance or recess to

prepare the witnesses for the State’s questions.

      In Luce v. United States, the United States Supreme Court addressed a similar

situation where a defendant claimed that his rights had been infringed upon when

the Government’s threat to use a prior conviction for impeachment purposes kept

him from testifying. 469 U.S. 38, 40, 105 S. Ct. 460, 462 (1984). The Court held

that the issue was waived because the defendant did not testify, thereby depriving

the appellate courts of a record on which to make a ruling. See id. at 43, 105 S. Ct.

at 464.

            A reviewing court is handicapped in any effort to rule on subtle
      evidentiary questions outside a factual context. This is particularly true




      statement. We therefore assume that the State provided written notice of these
      convictions on the morning of the hearing, as contended by appellant. See Hayden
      v. State, 66 S.W.3d 269, 273 (Tex. Crim. App. 2001) (noting courts accept as true
      factual assertions made by counsel at trial which could have been, but were not,
      disputed by opposing counsel).

                                          12
      under Rule 609(a)(l),4 which directs the court to weigh the probative
      value of a prior conviction against the prejudicial effect to the
      defendant. To perform this balancing, the court must know the precise
      nature of the defendant’s testimony, which is unknowable when, as
      here, the defendant does not testify.

Id. at 41, 105 S. Ct. at 463. The Texas Court of Criminal Appeals used the same

reasoning and cited Luce when confronted with the case of a defendant claiming

error when he declined to testify in the punishment phase of a trial because of the

threat of impeachment with a prior conviction. Jackson v. State, 992 S.W.2d 469,

479–80 (Tex. Crim. App. 1999).

      Given the record before us, we would be forced to speculate about (1) the

precise nature of the witnesses’ testimony; (2) whether the State would have sought

to introduce the evidence through cross-examination of the witnesses; (3) whether

the trial court would have allowed the State to introduce it or excluded it based on

the State’s lack of reasonable notice; and (4) whether any resulting error in

permitting the extraneous evidence would have been harmless. See Jackson, 992

S.W.2d at 479–80; see also Washington v. State, No. 14–13–00818–CR, 2015 WL

2250628, at *2 (Tex. App.—Houston [14th Dist.] July 15, 2015, pet. dism’d) (mem.

op., not designated for publication). We cannot make a ruling based on speculation.

Appellant failed to preserve error with regard to the Tennessee convictions.


4
      Texas Rule of Evidence 609 was derived from the federal corollary rule. Theus v.
      State, 845 S.W.2d 874, 879 (Tex. Crim. App. 1992).


                                         13
      We emphasize that this conclusion is controlled by the facts of this case. The

State should not take this opinion as license to ignore the Legislature’s mandate that

the State provide reasonable notice of its intent to introduce extraneous offense

evidence. See Roethel, 80 S.W.3d at 283. To protect the fundamental fairness of

our system, defendants must be permitted to determine what allegations they will be

required to defend themselves against during trial. Nance, 946 S.W.2d at 492. As

previously stated, the clear purpose of article 37.07, section 3(g) is to avoid unfair

surprise and trial by ambush. Id. Providing notice to trial counsel on the morning

of the punishment hearing of its intention to introduce numerous prior out-of-state

felony convictions through cross-examination of defense witnesses undeniably

defeats this purpose and, on a slightly different record, could have required this case

to be remanded for another punishment hearing.

      We overrule appellant’s first point of error.

                            Sudden Passion Instruction

      In his second point of error, appellant argues that the trial court abused its

discretion by overruling his objection to the jury charge and his request that a sudden

passion instruction be included in the charge.5


5
      Although appellant frames his point of error as a complaint about the trial court’s
      failure to instruct the jury on the lesser-included offense of second-degree murder,
      a review of the record below and his brief makes clear that he is actually
      complaining about the trial court’s denial of his request for a sudden passion
      instruction.

                                           14
A.    Standard of Review and Applicable Law

      We use a two-step process in reviewing jury charge error. Wooten v. State,

400 S.W.3d 601, 606 (Tex. Crim. App. 2013) (citing Ngo v. State, 175 S.W.3d 738,

743 (Tex. Crim. App. 2005)). If we first determine that error exists in the charge,

we then review the record to determine whether the error caused sufficient harm to

require reversal of the conviction. Wooten, 400 S.W.3d at 606.

      At the punishment stage of a murder trial, a defendant may argue that he

caused the death while under the immediate influence of sudden passion arising from

an adequate cause. Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim. App. 2003).

Sudden passion is a mitigating circumstance that, if found by the jury to have been

proven by a preponderance of the evidence, reduces the offense from a first-degree

felony with a punishment range of five to ninety-nine years’ imprisonment to a

second-degree felony with a punishment range of two to twenty years. TEX. PENAL

CODE ANN. §§ 12.32(a), 12.33(a), 19.02(d) (West 2011). A defendant is entitled to

a jury instruction on the issue of sudden passion if the record, at a minimum, supports

an inference that (1) the defendant in fact acted under the immediate influence of a

passion such as terror, anger, rage, or resentment; (2) his sudden passion was in fact

induced by some provocation by the deceased or another acting with him, which

provocation would commonly produce such a passion in a person of ordinary

temper; (3) he committed the murder before regaining his capacity for cool



                                          15
reflection; and (4) a causal connection existed “between the provocation, passion,

and homicide.” Wooten, 400 S.W.3d at 605 (quoting McKinney v. State, 179 S.W.3d

565, 569 (Tex. Crim. App. 2005)); see also TEX. PENAL CODE ANN. § 19.02(a)(1)–

(2) (West 2011) (defining sudden passion and adequate cause).6

      In considering whether any evidence was raised on this punishment issue, we

review the record from both the guilt-innocence and punishment phases of the trial.

Trevino, 100 S.W.3d at 238. We review evidence offered in support of a defensive

issue in the light most favorable to the defense. See Griffin v. State, 461 S.W.3d

188, 192 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Granger v. State, 3

S.W.3d 36, 38 (Tex. Crim. App. 1999)). However, “[t]he mere fact that a defendant

acts in response to the provocation of another is not sufficient to warrant a charge on

sudden passion. Instead, there must be some evidence that the defendant was under

the immediate influence of sudden passion.” Trevino, 100 S.W.3d at 241.

B.    Analysis

      Appellant argues that he was entitled to have a sudden passion instruction

submitted to the jury because there was more than a scintilla of evidence to support


6
      Sudden passion is defined as “passion directly caused by and arising out of
      provocation by the individual killed or another acting with the person killed which
      passion arises at the time of the offense and is not solely the result of former
      provocation.” TEX. PENAL CODE ANN. § 19.02(a)(2) (West 2011). Adequate cause
      means “cause that would commonly produce a degree of anger, rage, resentment, or
      terror in a person of ordinary temper, sufficient to render the mind incapable of cool
      reflection.” Id. § 19.02(a)(1).

                                            16
his requested charge. Specifically, appellant points to Medina’s testimony that

appellant and the complainant were arguing in the bar, they had to be escorted

outside by bouncers, appellant and the complainant continued their argument

outside, and that whatever the subject of the argument, it was sufficient to cause

appellant to circle the parking lot, return to the complainant, and shoot him several

more times. Appellant also relies on Benjamin’s testimony that appellant told him

that he was in jail because he had “dumped” on someone who had disrespected him

in a club.

      The record reveals that Medina described the altercation as “a little bickering,

a little pushing, a little shoving, but nothing major.” He testified that when the

bouncers escorted appellant and the complainant out of the bar, neither appellant nor

complainant became physical or had to be “manhandled,” but “[t]hey just took it as,

okay, we got to go.” This evidence does not demonstrate the anger, rage, or

resentment required to establish sudden passion. See Dukes v. State, ___ S.W.3d

___, 2016 WL 828106, at *6 (Tex. App.—Houston [1st Dist.] Mar. 3, 2016, no pet.

h.) (noting sudden passion is extreme emotional and psychological state and that

ordinary anger does not justify sudden passion instruction); Willis v. State, 936

S.W.2d 302, 305 (Tex. App.—Tyler 1996, writ ref’d) (concluding issue of sudden

passion arising from adequate cause was not raised where defendant was having

argument with victim, victim walked away and broke out windows of defendant’s



                                         17
car, and defendant then left and retrieved gun from his room, returned, and shot

victim repeatedly in back). Although Benjamin testified that appellant told him that

he “dumped” on someone who had disrespected him at a club, there is no testimony

as to what the complainant allegedly said to appellant and, therefore, no evidence

showing whether the complainant’s remarks were of a kind that would make an

ordinary person’s mind incapable of cool refection. See Dukes, 2016 WL 828106,

at *6. Finally, Medina’s testimony that after the complainant began to walk away

from appellant, appellant went to his car, opened the trunk, removed a gun, and shot

the complainant does not show that appellant was angry to the degree that he was

incapable of cool reflection but rather reveals a deliberate, reflective action by

appellant. See Saldivar v. State, 980 S.W.2d 475, 505–06 (Tex. App.—Houston

[14th Dist.] 1998, pet. ref’d) (concluding defendant who became enraged after

victim divulged that victim’s father had accused defendant of embezzlement and

lesbianism and killed victim as she turned and began walking towards door was not

entitled to sudden passion charge); Tronsco v. State, No. 06-03-00065-CR, 2004 WL

573659, at *9 (Tex. App.—Texarkana Mar. 24, 2004, pet. ref’d) (mem. op., not

designated for publication) (finding defendant’s testimony that he obtained machete

from his truck after victim had kicked him, struck victim with machete, and then

when he perceived another threat from victim, obtained knife and stabbed victim

showed deliberate, reflective action).



                                         18
      Because we find no evidence raising an issue that appellant shot the

complainant under the immediate influence of a sudden passion arising from an

adequate cause, the trial court did not err in overruling his objection to the jury

charge and his requested instruction on the issue. See Saldivar, 980 S.W.2d at 506.

Accordingly, we overrule appellant’s second point of error.

                                   Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice


Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

Radack, C.J., concurring in judgment only, without separate opinion.

Do not publish. TEX. R. APP. P. 47.2(b).




                                        19
