Bob Harold Leach v. State

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In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-03-00211-CR

______________________________



BOB HAROLD LEACH, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee


                                              


On Appeal from the 402nd Judicial District Court

Wood County, Texas

Trial Court No. 17,101-2002


                                                 




Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss



MEMORANDUM OPINION


            Bob Harold Leach pled guilty to the offense of aggravated kidnapping and asked the trial court to assess punishment. Leach had no negotiated plea agreement with the State. The trial court assessed Leach's punishment at imprisonment for life. In a single issue on appeal, Leach contends the State failed to provide adequate notice of its intent to introduce evidence of an extraneous crime or bad act, and, accordingly, the trial court erred by admitting evidence of that extraneous offense in violation of Article 37.07 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon Supp. 2004). Because Leach failed to request such notice, he was not entitled to it. Therefore, we affirm the trial court's judgment.

            Article 37.07, Section 3(g) states that a request is necessary:

On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required under 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) (emphasis added).

            The record in this case contains no evidence Leach sent a self-executing letter to the State requesting advance notice, pursuant to Article 37.07, of the State's intent to introduce extraneous offense evidence at trial. Nor is there any evidence in the record that Leach made such a "timely request" of the State. As such, the State had no duty to provide notice under Article 37.07 of the State's intent to introduce evidence of an extraneous offense. See Hartson v. State, 59 S.W.3d 780, 787 (Tex. App.—Texarkana 2001, no pet.). Absent such an obligation, the defendant cannot claim error on appeal regarding the adequacy of any voluntary Article 37.07 notification provided by the State.

            We overrule Leach's sole point of error and affirm the trial court's judgment.

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice


Date Submitted:          July 15, 2004

Date Decided:             July 21, 2004


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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00040-CR

                                                ______________________________

 

 

                              CALVIN WAYNE BURNHAM, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                  

 

 

                                       On Appeal from the 123rd Judicial District Court

                                                             Panola County, Texas

                                                       Trial Court No. 2005-C-0003

 

                                                                                                   

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                     MEMORANDUM OPINIO N

 

            Calvin Wayne Burnham appeals from his convictions by the trial court on four charges of aggravated sexual assault of a child and four charges of indecency with a child.  Burnham has filed a single brief, in which he raises issues common to all of his appeals.[1]  He argues that the trial court committed reversible error in considering evidence from a previous revocation hearing when granting the State’s second amended motion to adjudicate guilt and in admitting the results of a polygraph examination.  Burnham also complains that the evidence was insufficient to establish that he violated any conditions of his community supervision.

            We addressed these issues in detail in our opinion of this date on Burnham’s appeal in cause number 06-10-00038-CR.  For the reasons stated therein, we likewise conclude that reversible error has not been shown in this case.

            We affirm the trial court’s judgment.

 

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

 

Date Submitted:          December 14, 2010    

Date Decided:             December 15, 2010

 

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OPINION ON REHEARING

            In the above-captioned case, we affirmed Calvin Wayne Burnham’s conviction of four counts of aggravated sexual assault and four counts of indecency with a child, his stepdaughter.  Burnham has filed a single motion for rehearing in all of his cases asking that this Court rehear the matter.[2]  Specifically, he alleges that the State violated Article 42.12, Section 21(b) of the Texas Code of Criminal Procedure in amending its motion to adjudicate guilt “after the commencement of taking evidence at the hearing.”   Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b) (Vernon Supp. 2010). 

            We addressed these issues in detail in our opinion on rehearing of this date on Burnham’s appeal in cause number 06-10-00038-CR.  For the reasons stated therein, we likewise conclude that Burnham’s complaint on rehearing was not preserved for our review.

            We deny the motion for rehearing.

 

 

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

 

Date:   January 26, 2011

 

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[1]Burnham appeals from four convictions for aggravated sexual assault of a child and four convictions for indecency with a child, cause numbers 06-10-00038-CR through 06-10-00045-CR.

[2]Burnham seeks rehearing of our opinions affirming four convictions of aggravated sexual assault of a child and four convictions of indecency with a child, cause numbers 06-10-00038-CR through 06-10-00045-CR.