Ervin Eugene Wilkerson v. State






NUMBER 13-02-00655-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI – EDINBURG

                                                                                                                       

ERVIN EUGENE WILKERSON,                                                   Appellant,


v.


THE STATE OF TEXAS,                                                                Appellee.

                                                                                                                       

On appeal from the 329th District Court of Wharton County, Texas.

                                                                                                                       

MEMORANDUM OPINION


Before Chief Justice Valdez and Justices Hinojosa and Castillo

Memorandum Opinion by Justice Hinojosa


          A jury found appellant, Ervin Eugene Wilkerson, guilty of the offense of assault of a public servant and, after finding the enhancement paragraphs in the indictment to be true, assessed his punishment at twenty-eight years imprisonment. The trial court has certified that this case is not a plea-bargain case, and the defendant has the right to appeal. See Tex. R. App. P. 25.2(a)(2). In two issues, appellant contends the trial court erred (1) by refusing to grant his motion for continuance and (2) by admitting evidence of extraneous offenses during the punishment phase of his trial. We affirm.

          As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. Tex. R. App. P. 47.4.

A. Denial of Motion for Continuance

          In his first issue, appellant contends the trial court erred by refusing to grant his motion for continuance. He asserts the refusal constituted a denial of his Sixth Amendment right to counsel.

          Where the denial of a continuance has resulted in representation by counsel who was not prepared, the courts have not hesitated to declare an abuse of discretion. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). However, the granting of a motion for continuance is still within the sound discretion of the trial court. Id. To find an abuse of discretion in a trial court’s refusal to grant a motion for continuance, an appellant must show that he was prejudiced by his counsel’s inadequate preparation time. Id.; Duhamel v. State, 717 S.W.2d 80, 83 (Tex. Crim. App. 1986).

          At a pretrial hearing, counsel for appellant, Donna Benge, asked leave of court to question appellant regarding “his choice of attorneys.” Appellant testified that when he retained Benge to represent him, Benge told him that Lorna Henson, a former employee of the district attorney’s office, would sit as second chair on his defense team. Benge said that Henson had a possible conflict of interest because she had prosecuted appellant in the past. Appellant testified he understood the conflict, but he still wanted Henson to assist Benge in defending him. He reiterated that he wanted Henson to be second chair on his defense team. The record contains a waiver of conflict of interest signed by appellant.

          Henson testified that because the “appropriate government agency” did not consent to her representation of appellant, she had no choice but to disqualify herself. Benge then orally moved for a continuance, asserting that if she was forced to go forward without Henson as second chair, she felt she would be ineffective. The State responded that: (1) it had not moved to disqualify Henson; (2) Henson had disqualified herself; and (3) whether she assisted as second chair in the case was entirely her choice. Appellant’s motion for continuance was denied.

          Appellant contends the denial of his motion for continuance forced him to go to trial with an attorney who was not fully prepared. However, he does not argue, much less establish, any specific prejudice to his defense from the trial court’s failure to continue the trial. He does not claim he was unfairly surprised at trial or unable to effectively cross-examine any of the State’s witnesses. The bare assertion that counsel did not have adequate time to prepare does not demonstrate prejudice. See Heiselbetz, 906 S.W.2d at 512. Absent a showing of prejudice, we cannot hold that the trial court abused its discretion. Appellant’s first issue is overruled.

B. Admission of Extraneous Offense Evidence

          In his second issue, appellant contends the trial court erred in admitting evidence of certain extraneous offenses not included in the State’s notice during the punishment phase of the trial. We review a trial court’s decision to admit evidence under an abuse-of-discretion standard. Allen v. State, 108 S.W.3d 281, 284 (Tex. Crim. App. 2003). A trial court must be given wide latitude to admit or exclude evidence as it sees fit. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). As long as the trial court’s ruling is within the zone of reasonable disagreement, the appellate court may not disturb it. Montgomery v. State, 810 S.W.2d 372, 391 (Tex Crim. App. 1990).

          Evidence of other crimes, wrongs, or acts may be admissible in the punishment phase of the trial so long as reasonable notice is given to the defendant. See Tex. Code Crim. Proc. Ann. art. 37.07 § 3(g) (Vernon Supp. 2004); Tex R. Evid. 404(b). The purpose of this notice requirement is to avoid unfair surprise and trial by ambush. Nance v. State, 946 S.W.2d 490, 493 (Tex. App.–Fort Worth 1997, pet. ref’d). Whether notice is reasonable is to be determined by all the surrounding facts and circumstances. See Sebalt v. State, 28 S.W.3d 819, 822 (Tex. App.-Corpus Christi 2000, no pet.)

          On October 17, 2002, the trial court ordered the State to provide appellant written notice, at least ten days prior to trial, of its intention to introduce evidence of other crimes, wrongs, or acts. The court further ordered that if the State did not provide such notice, it would not allow the State to introduce such evidence. Trial was scheduled for October 28, 2002.

          On October 17, 2002, the State filed its notice of intention to introduce evidence of other crimes, wrongs or acts. On October 21, 2002, (seven days before trial) the State filed an amended notice, and on October 25, 2002, (three days before trial) the State filed a second amended notice. The court found the amended notices to be reasonable and allowed the State to introduce evidence of the crimes, wrongs, and acts specified in the amended notices during the punishment phase of the trial.

          There is no authority that notice given the Friday prior to a Monday trial is per se unreasonable. See Sebalt, 28 S.W.3d at 821-22; Ramirez v. State, 967 S.W.2d 919, 923 (Tex. App.–Beaumont 1998, no pet.). In light of the fact that three days notice has been found to be reasonable when the defense had the statement which contained references to the extraneous offenses, see Sebalt, 28 S.W.3d at 822, the trial court has the authority to amend its own orders, and appellant has failed to demonstrate unfair surprise, we conclude the trial court did not abuse its discretion in determining that the amended notices were reasonable. Appellant’s second issue is overruled.

          The judgment of the trial court is affirmed.

 

                                                                           FEDERICO G. HINOJOSA

                                                                           Justice



Do not publish. See Tex. R. App. P. 47.2(b).


Memorandum Opinion delivered and filed

this the 12th day of August, 2004.