Ricardo Lujan v. State

11th Court of Appeals Eastland, Texas Opinion Ricardo Lujan Appellant Vs. No. 11-03-00163-CR -- Appeal from Dawson County State of Texas Appellee The jury convicted Ricardo Lujan of possession with intent to deliver a controlled substance, cocaine, in a drug-free zone. The jury found the enhancement paragraphs to be true and assessed appellant’s punishment at 99 years confinement and a $20,000 fine. We affirm. In his sole point of error, appellant argues that the trial court erred in admitting evidence of gang membership over his objection for lack of notice. On January 10, 2003, appellant filed a request pursuant to TEX.R.EVID. 404(b) for notice of the State’s intention to introduce evidence of other crimes, wrongs, or acts. Appellant specifically requested notice of the State’s intent to introduce the evidence pursuant to Rule 404(b) “whether seeking to introduce the same at the guilt/innocence or punishment, if any.” The trial court held a hearing on the motion on the same day it was filed. The trial court granted the motion with the understanding that the State would have nine days to provide the information. The State filed its notice of intent to introduce extraneous offenses, crimes, wrongs, and bad acts on January 21, 2003. The notice included various disciplinary violations while appellant was incarcerated. The guilt/innocence phase of the trial began on January 29, 2003. During a recess at the guilt/innocence phase of the trial, the State informed the trial court that it had received new information from one of its witnesses. The State planned to call Wayne Smoker, Chief Classification Officer for the Texas Department of Criminal Justice, to testify during the punishment phase of the trial about appellant’s various disciplinary problems while incarcerated. Officer Smoker had reviewed some paperwork that morning and believed that there might be some more information about appellant. Officer Smoker called a gang intelligence officer who checked the files and found that appellant was a member of a prison gang. The State informed the trial court that it had just learned of the information and that it had immediately informed appellant’s counsel. Appellant’s counsel acknowledged that the State had informed him immediately upon learning of the information but stated that he was surprised by the evidence and had no reason to suspect appellant had any gang affiliation. Appellant’s counsel noted that he would have no time to investigate the allegations. Appellant’s counsel asked that the evidence be excluded or, in the alternative, that he be given a continuance to investigate the allegations. The trial court noted that the evidence would not be at issue unless appellant was convicted and postponed ruling on appellant’s objection until the matter was presented at the punishment phase of the trial. On January 30, 2003, during the punishment phase of the trial, the trial court again held a hearing outside the presence of the jury concerning the admissibility of the evidence that appellant was a member of a prison gang. The State presented an admission form allegedly signed by appellant which confirmed that he was a member of a prison gang. Appellant informed his counsel that he did not sign the admission form. Appellant’s counsel renewed his objections on the admissibility of the evidence. Appellant’s counsel also stated that he was not alleging any bad faith on the part of the State. The trial court found that the notice given to appellant was reasonable in that “it was given within just a few minutes after the State became aware of this.” The trial court granted a recess for appellant to interview the State’s witness on appellant’s gang affiliation. The State then called Abel Siller, security threat group officer for the Texas Department of Criminal Justice, to testify concerning appellant’s affiliation with a prison gang. Officer Siller testified that appellant was a confirmed member of a prison gang. Officer Siller also presented documentation which included a “self-admission” form signed by appellant stating that he was a member of a gang. Appellant testified at the punishment phase of the trial that he was not a member of a prison gang and that he did not sign the “self-admission” form. Appellant argues that the trial court should not have admitted the evidence of gang affiliation because he was not given reasonable notice. TEX. CODE CRIM. PRO. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2004) provides that, at the punishment phase of the trial, evidence may be offered by the State and the defendant as to any matter the trial court deems relevant to sentencing. TEX. CODE CRIM. PRO. ANN. art. 37.07, § 3(g) (Vernon Supp. 2004) states that: 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. Rule 404(b) provides that evidence of other crimes, wrongs, or acts may be admissible “provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial.” Appellant requested that the State provide him with notice of the State’s intent to introduce evidence pursuant to Rule 404(b) at the guilt/innocence phase or punishment phase of the trial. Appellant’s motion did not request notice pursuant to Article 37.07, section 3(g). See Williams v. State, 933 S.W.2d 662 (Tex.App. - Eastland 1996, no pet’n). Article 37.07, section 3(g) requires notice to be given in the same manner as in Rule 404(b). Rule 404(b) requires “reasonable notice.” Because these rules provide only minimal details regarding the manner in which notice is given, the reasonableness of the State’s notice turns on the facts and circumstances of each individual case. Scott v. State, 57 S.W.3d 476, 480 (Tex.App. - Waco 2001, pet’n ref’d). The trial court’s decision to admit extraneous offense evidence during the punishment phase of a trial is reviewed under an abuse of discretion standard; therefore, we will not reverse the trial court’s ruling if it was within the zone of reasonable disagreement. Scott v. State, supra. The State did not learn of appellant’s alleged membership in a prison gang until the trial began. Upon learning of the evidence, the State immediately provided appellant with notice of its intent to admit the evidence. The trial court allowed appellant a recess to interview Officer Siller, the State’s witness providing the evidence. Because of the unique circumstances in this case, we find that the trial court did not abuse its discretion in allowing the evidence. See Henderson v. State, 29 S.W.3d 616 (Tex.App. - Houston [1st. Dist.] 2000, pet’n ref’d). Moreover, appellant has not shown that any error in admitting the evidence resulted in harm affecting his substantial rights. TEX.R.APP.P. 44.2(b); Roethel v. State, 80 S.W.3d 276, 281 (Tex.App. - Austin 2002, no pet’n). The State admitted evidence at the punishment phase of appellant’s previous convictions. The State also admitted evidence of appellant’s numerous disciplinary problems while incarcerated. Appellant testified at the punishment phase of the trial and denied being a member of the gang. The State’s evidence on appellant’s gang membership consisted of the testimony that he was a member of the gang and that the gang is a “bad group of people.” Appellant’s sole point of error is overruled. The judgment of the trial court is affirmed. JIM R. WRIGHT JUSTICE March 4, 2004 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.