Carey Lee Cramer v. State

NUMBER 13-06-00587-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CAREY LEE CRAMER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 370th District Court
of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Rodriguez

Appellant, Carey Lee Cramer was convicted of indecency with a child by contact,

indecency with a child by exposure, and aggravated sexual assault of a child regarding

E.B. See TEX . PENAL CODE ANN . § 21.11(a)(1), (2) (Vernon 2003), § 22.021(a)(2) (Vernon

Supp. 2008). He was also convicted of indecency with a child by contact regarding S.M.
See id. § 21.11(a)(2). Cramer challenges the trial court's judgment by the following ten

issues: (1) the evidence was legally insufficient to support his conviction for aggravated

sexual assault; (2) the evidence was factually insufficient to support his conviction for

aggravated sexual assault; (3) the trial court erred by denying his motion for instructed

verdict; (4) the trial court erred by finding the outcry statement made by E.B. to S.W. to be

reliable; (5) the trial court erred by finding the outcry statement made by S.M. to M.M. to

be reliable; (6) the trial court erred by limiting his cross-examination of S.W. during the

outcry reliability hearing; (7) the trial court erred in denying his request to conduct a voir

dire examination of Lynn Tyson, an expert witness for the State; (8) the trial court erred by

denying him a 705(b) hearing under the Texas Rules of Evidence to investigate the

underlying facts or data upon which Tyson based her opinions; (9) the trial court erred by

limiting his cross-examination of Tyson; and (10) the trial court erred by denying his motion

for mistrial. We affirm.

I. BACKGROUND

In 2004, S.W. called the Tucson, Arizona Police Department and reported that

Cramer had sexually abused her eleven-year-old daughter, E.B. After interviewing E.B.,

Detective Johnny Walker of the Tucson Police Department informed the McAllen Police

Department that Cramer may have sexually abused E.B. in Hidalgo County, Texas.

Cramer was subsequently arrested for sexually abusing E.B. and S.M., S.W.'s little

sister, and charged with the following offenses: (1) aggravated sexual assault of a child,

E.B., (counts one, four, five, six, seven, and eight); (2) indecency with a child by sexual

contact of S.M. (count two); (3) indecency with a child by sexual contact of E.B. (count

three); and (4) indecency with a child, E.B., by exposure (count nine). A jury found Cramer

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guilty of counts two, four, and nine. The trial court placed Cramer on ten years' community

supervision for counts two, three, and nine, to run concurrently with a sentence of six years'

imprisonment for count four. This appeal ensued.

II. SUFFICIENCY OF THE EVIDENCE

By his first and second issues, Cramer contends that the evidence was legally and

factually insufficient to support a conviction of aggravated sexual assault of a child because

the evidence failed to establish beyond a reasonable doubt that Cramer caused his sexual

organ to penetrate E.B.'s sexual organ. By his third issue, Cramer contends that the trial

court erred by denying his motion for instructed verdict. We address Cramer's first and

third issues together because a challenge to the trial court's ruling on a motion for

instructed verdict is a challenge to the legal sufficiency of the evidence. See McDuff v.

State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (en banc); Cantu v. State, 944 S.W.2d

669, 670 (Tex. App.–Corpus Christi 1997, pet. ref'd) (citing Cook v. State, 858 S.W.2d 467,

470 (Tex. Crim. App. 1993); Rodriguez v. State, 888 S.W.2d 211, 214 (Tex. App.–Corpus

Christi 1994, no pet.)).

A. Standard of Review and Applicable Law

In conducting a legal sufficiency review, we view the relevant evidence in the light

most favorable to the verdict to determine whether a rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19

(1979)); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). We do not re-

evaluate the weight and credibility of the evidence, and we do not substitute our own

judgment for the trier of fact. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000)
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(en banc); Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.–Houston [14th Dist.] 2000,

pet. ref'd). Instead, we consider whether the jury reached a rational decision. Beckham,

29 S.W.3d at 151.

In a factual sufficiency review, we review the evidence in a neutral light to determine

whether the evidence is so weak that the jury's verdict seems clearly wrong and manifestly

unjust or the jury's verdict is against the great weight and preponderance of the evidence.

Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). This Court will not

reverse the jury's verdict unless we can say, with some objective basis in the record, that

the great weight and preponderance of the evidence contradicts the verdict. Id. at 417.

Both legal and factual sufficiency are measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet.

ref'd). Under a hypothetically correct jury charge, a person commits the offense of

aggravated sexual assault of a child if he intentionally or knowingly causes his sexual

organ to penetrate the sexual organ of a child younger than fourteen years of age. See

TEX . PENAL CODE ANN . § 22.021(a)(2)(B) (Vernon Supp. 2008).

The testimony of a child victim alone is sufficient to support a conviction for

aggravated sexual assault. TEX . CODE CRIM . PROC . art. 38.07 (Vernon 2005); see Garcia

v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978). The victim's description of what

occurred does not need to be precise, and wide latitude is given to the testimony of a child

victim of sexual abuse. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (en

banc). Penetration may be proved by circumstantial evidence, and there is no requirement

that the child victim be able to testify as to penetration. Id. at 133. Moreover, the slightest

4
penetration is sufficient to uphold a conviction if it is proven beyond a reasonable doubt.

Sherbert v. State, 531 S.W.2d 636, 637 (Tex. Crim. App. 1976); Rhynes v. State, 479

S.W.2d 70, 72 (Tex. Crim. App. 1972).

B. Analysis

Cramer complains that E.B.'s testimony that he did not penetrate her vagina with

his penis in Hidalgo County is contrary to the verdict. However, "[p]enetration between the

labia of the female's private parts by the male sexual organ of the defendant is sufficient

although the vagina was not entered or an act of intercourse was never completed."

Sherbert, 531 S.W.2d at 637; see Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App.

1992) (en banc) (providing that contact with the female sexual organ in a manner a

reasonable person would consider more intrusive than contact with the outer vaginal lips

constitutes penetration). Because wide latitude is given to the testimony of a child victim

of sexual abuse, see Villalon, 791 S.W.2d at 134, the jurors could have inferred that

Cramer penetrated E.B.'s labia with his penis in Hidalgo County based on her testimony

that in McAllen, Texas, Cramer put "jellyish stuff" on her vagina, "inserted" or "rubbed" his

penis on her sexual organ until he ejaculated, and told her, "It's almost in[,]" even though

E.B.'s vagina was not entered or an act of intercourse was never completed. See

Sherbert, 531 S.W.2d at 637; Vernon, 841 S.W.2d at 409 ("[P]ushing aside and reaching

beneath a natural fold of skin into an area of the body not usually exposed to view, even

in nakedness, is a significant intrusion beyond mere external contact."); Karnes v. State,

873 S.W.2d 92, 96 (Tex. App.–Dallas 1994, no pet.) ("Touching beneath the fold of the

external genitalia amounts to penetration within the meaning of the aggravated sexual

assault statute.").

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 Viewing the evidence in the light most favorable to the verdict we conclude that a

rational trier of fact could have found beyond a reasonable doubt, see Hooper, 214 S.W.3d

at 13; Escamilla, 143 S.W.3d at 817, that Cramer caused his sexual organ to penetrate

E.B.'s sexual organ in Hidalgo County. See Sherbert, 531 S.W.2d at 637; Rhynes, 479

S.W.2d at 72; see also Everage v. State, 848 S.W.2d 357, 358 (Tex. App.–Austin 1993,

no pet.) (per curiam) ("'Female sexual organ' is a more general term that refers to the entire

female genitalia, including both the vagina and the vulva."). Furthermore, viewing the

evidence in a neutral light, we conclude that the evidence is not so weak that the jury's

verdict seems clearly wrong and manifestly unjust and that the jury's verdict is not against

the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15. We

overrule Cramer's first, second, and third issues.

III. OUTCRY TESTIMONY

In his fourth and fifth issues, Cramer contends that the trial court abused its

discretion by admitting the outcry testimony of S.W. and M.M. S.W. testified as a witness

regarding E.B.'s outcry statement, while M.M. testified as a witness regarding S.M.'s outcry

statement.1

A trial court's decision to admit or exclude evidence is reviewed under an abuse of

discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2007). We

should uphold the trial court's judgment unless the trial court's decision lies outside the

"zone of reasonable disagreement." Id.

1
In his brief, Cram er asserts that M.M. also testified as an outcry witness regarding E.B.'s statem ent.
However, based on our review of the record, the trial court only adm itted M.M. as an outcry witness regarding
S.M.'s statem ent. Therefore, Cram er's com plaint is without m erit.

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 Article 38.072 of the Texas Code of Criminal Procedure provides a hearsay

exception permitting the State to introduce statements made by a child against whom an

offense was allegedly committed and describes the proper outcry witness as "the first

person, 18 years of age or older, other than the defendant, to whom the child made a

statement about the offense." TEX . CODE CRIM . PROC . ANN . art. 38.072 § 2(a)(2) (Vernon

2005). In order to be admissible, the child's statement to the outcry witness must describe

the alleged offense in some discernible manner and "must be more than words which give

a general allusion that something in the area of child abuse was going on." Garcia v.

State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990) (en banc).

Before admitting the outcry testimony pursuant to article 38.072, the trial court must

conduct a hearing outside the presence of the jury to determine if the statement is reliable

"based on the time, content and circumstances of the statement." TEX . CODE CRIM . PROC .

ANN . art. 38.072 § 2(b)(2). The determination of the admissibility of an outcry statement

is left to the broad discretion of the trial court, and the trial court's findings will be upheld

so long as they are supported by the record. Castelan v. State, 54 S.W.3d 469, 475 (Tex.

App.–Corpus Christi 2001, no pet.) (citing Garcia, 792 S.W.2d at 92).

Cramer argues that E.B.'s statements to S.W. "did not relay any specific details

about the charged offense," therefore, the trial court should have determined that the

statements were nothing more than general allusions that something sexual was occurring

and not a clear description of the offense charged. It is undisputed that S.W. was the first

person, 18 years of age or older, that E.B. told about the offense. Outside the presence

of the jury, S.W. testified that after watching a television show about sexual abuse, she

asked her daughter E.B., who was eleven at the time, whether Cramer "had ever done

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anything sexual or inappropriate to her." According to S.W., E.B. answered "Yes," and

stated that Cramer started showing her "pictures of men and women together and then

women and women doing sexual acts together on the computer." S.W. also testified that

E.B. told her that Cramer made her perform oral sex on him, that he performed oral sex

on her, and that Cramer put his fingers inside of her. S.W. explained that E.B. did not use

the terms oral sex, but that E.B. said that she "sucked on him" and that he "licked her."

According to S.W., E.B. claimed that these things happened when they lived in Mercedes

and when they lived in McAllen. E.B. also told S.W. that Cramer went into her bedroom

after she had showered, pushed her onto the bed, tried to put his penis inside of her, and

stopped when she started crying.

Based on S.W.'s testimony, the trial court could have concluded that E.B. described

the alleged offenses in a discernable manner. Therefore, due to the broad discretion

afforded trial courts in the determination of who is a proper outcry witness, Id. at 475, we

cannot say that the trial court's decision to admit S.W.'s outcry testimony under article

38.072 lies outside the "zone of reasonable disagreement." Oprean, 201 S.W.3d at 726.

We overrule appellant's fourth issue.

We next consider the outcry testimony provided by M.M. M.M. testified that, after

"[E.B.] had given me some information," she suspected that "something may have

happened" to S.M. M.M. asked S.M. if anything had happened to her while she was with

Cramer. S.M. told her that when she visited S.W. and E.B. in McAllen, Texas, a few

months before the family moved to Arizona, Cramer had "played around" with her. S.M.

also told M.M. that, after she and E.B. took a bath, Cramer asked her to wear "a little skirt"

and that they were "going to play tickling." According to S.M., "one girl would hold the other

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one down" while Cramer tickled her. S.M. told M.M. that Cramer put his hand "underneath

her panties" and touched her "private parts" while he was tickling her. M.M. testified that

S.M. was very nervous when she told M.M. about the alleged abuse and that S.M. stated

she had been afraid to tell M.M. about the incident.

Cramer argues that the trial court abused its discretion by determining M.M.'s

testimony was reliable, "given that the allegations were not reported for some time, over

two years," and that when the allegations were finally reported, "[CPS] did not find the

statements reliable enough to follow through."

In determining the reliability of a statement "based on the time, content and

circumstances" in which it is made, as required by section 2(b)(2) of article 38.072 of the

Texas Code of Criminal Procedure, the phrase "time, content, and circumstances" refers

to "the time the child's statement was made to the outcry witness, the content of the child's

statement, and the circumstances surrounding the making of that statement." TEX . CODE

CRIM . PROC . ANN . art. 38.072 § 2(b)(2); Broderick v. State, 89 S.W.3d 696, 699 (Tex.

App.–Houston [1st Dist.] 2002, pet. ref'd). The focus of the inquiry must remain upon the

outcry statement. Broderick, 89 S.W.3d at 699.

Focusing on S.M.'s outcry statement, the trial court could have concluded that it was

reliable based on M.M.'s testimony. Therefore, due to the broad discretion afforded trial

courts in the determination of who is a proper outcry witness, Castelan, 54 S.W.3d at 475,

we cannot say that the trial court's decision to admit M.M.'s outcry testimony under article

38.072 lies outside the "zone of reasonable disagreement." Oprean, 201 S.W.3d at 726.

We overrule appellant's fifth issue.

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 In his sixth issue, Cramer contends that the trial court deprived him of "his right to

confront, cross examine, and adequately test the reliability of the outcry statement(s)" by

limiting his cross-examination of S.W. during the "outcry reliability hearing." Cramer sought

to question S.W. regarding her state of mind and her actions after E.B. made her outcry

statement. However, S.W.'s actions after E.B.'s outcry were not relevant to the reliability

of E.B.'s statement. Therefore, because Cramer's questions were outside the narrow

scope of the inquiry into the time, circumstances, or content of the outcry statement, the

trial court did not abuse its discretion by limiting Cramer's cross-examination of S.W. See

id. (providing that the trial court's decision to limit cross-examination is not subject to

reversal absent a showing of a clear abuse of discretion). We overrule Cramer's sixth

issue.

IV. EXPERT WITNESS TESTIMONY

By his seventh issue, Cramer contends that the trial court erred by denying his

request to conduct a voir dire examination of Lynn Tyson, the State's expert witness.

Under Texas Rule of Evidence 705(b), before an expert witness gives an opinion

or discloses the underlying facts or data upon which she relied, "a party against whom the

opinion is offered upon request in a criminal case shall . . . be permitted [out of the hearing

of the jury] to conduct a voir dire examination directed to the underlying facts or data upon

which the opinion is based." TEX . R. EVID . 705(b). The purpose of such a voir dire

examination is to explore the facts and data underlying the expert's opinions. See id.;

Jenkins v. State, 912 S.W.2d 793, 814 (Tex. Crim. App. 1995) (op. on reh'g). Improper

denial of a rule 705(b) hearing is subject to a harmless error analysis. Goss v. State, 826

S.W.2d 162, 168 (Tex. Crim. App. 1992); see Alba v. State, 905 S.W.2d 581, 588 (Tex.

10
Crim. App. 1995) (en banc) (providing that even if the trial court had erred in denying a

705(b) hearing, such error was "clearly harmless").

Cramer requested a 705(b) hearing to determine the underlying facts or data upon

which Lynn Tyson's opinion was based. The trial court denied his request and allowed

Tyson to testify as an expert witness. Assuming without deciding that the trial court erred,

we determine whether the error was "so harmful as to require a reversal." See Goss, 826

S.W.2d at 168.

Although Cramer argues that he was "forced" to discover the facts and underlying

information that Tyson relied upon "in generating her conclusions and preparing her

testimony," Cramer has not outlined what he could have learned from the voir dire

examination of Tyson that was not already known. Cramer had been provided with a copy

of Tyson's therapy session notes, which formed the basis of her opinion. In her notes,

Tyson documented her treatment of E.B. Therefore, because Cramer was provided with

a copy of the notes, we conclude the underlying facts and data that formed the basis of

Tyson's opinion were made known to Cramer. Jenkins, 912 S.W.2d at 814 (finding that

appellant knew the underlying facts or data because appellant had copies of the expert's

evaluations of him that formed the basis of the expert's opinions); Alba, 905 S.W.2d at 588.

Furthermore, Cramer does not refer this Court to any inadmissible evidence that was

offered into evidence in the presence of the jury. See Goss, 826 S.W.2d at 168 (Rule

705(b) allows the opposing party the opportunity to explore the basis of the expert's

opinions without fear of eliciting damaging hearsay or other inadmissible evidence in the

presence of the jury); see also McBride, 862 S.W.2d at 609; Vasquez v. State, 819 S.W.2d

932, 935 (Tex. App.–Corpus Christi 1991, pet. ref'd) (Rule 705(b) allows the party not

11
calling the expert to explore the basis for the opinions without having the jury exposed to

otherwise inadmissible data).

Moreover, although Cramer complains, without citing to the record, that Tyson's

testimony was "replete with hearsay," similar evidence was introduced, without objection,

earlier in the trial through E.B.'s testimony. See Lane v. State, 151 S.W.3d 188, 193 (Tex.

Crim. App. 2004) ("An error if any in the admission of evidence is cured where the same

evidence comes in elsewhere without objection."); Jaynes v. State, 216 S.W.3d 839, 850

(Tex. App.–Corpus Christi 2006, no pet.) ("A trial court's erroneous admission of evidence

will not require reversal when other such evidence was received without objection, either

before or after the complained-of ruling.") (citing Leday v. State, 983 S.W.2d 713, 718

(Tex. Crim. App. 1998)). Therefore, we cannot say that the trial court's refusal to conduct

a 705(b) hearing "was so harmful as to require a reversal." See Goss, 826 S.W.2d 162 at

168. We overrule Cramer's seventh issue.

By his eighth issue, Cramer complains that the trial court erred in denying his

request for a mistrial on the basis that he was denied the opportunity to review the

underlying facts and/or data upon which Tyson based her opinion. Specifically, Cramer

complains that the trial court denied him access to materials Tyson allegedly relied upon

in reaching her conclusions and preparing for her testimony. However, a review of the

record shows that Cramer based his motion for mistrial on the right to confrontation under

the Sixth Amendment and not on his inability to review the underlying facts and data upon

which Tyson based her opinion. Because the basis of Cramer's complaint on appeal

regarding the trial court's error in denying his request for mistrial does not comport with the

basis raised in the trial court, Cramer has waived error. See TEX . R. APP. P. 33.1(a)(1)(A);

12
Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004); Bell v. State, 938

S.W.2d 35, 54-5 (Tex. Crim. App. 1996); see also Reyna v. State, 168 S.W.3d 173, (Tex.

Crim. App. 2005) (providing that the issue is "whether the complaining party on appeal

brought to the trial court's attention the very complaint that party" makes on appeal). We

overrule Cramer's eighth issue.

V. LIMITATION OF CROSS -EXAMINATION

By his ninth issue, Cramer contends that the trial court erred by limiting his cross-

examination of Tyson regarding domestic violence. Specifically, Cramer argues that the

trial court refused to allow him to cross-examine Tyson as to her motive and bias for

testifying against him.

The right to cross-examination is the primary interest protected by the confrontation

clause. See U.S. CONST . amend. VI; Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim.

App. 1991) (en banc). In exercising that right, a defendant has broad latitude to pursue

avenues of questioning "reasonably calculated to expose motive, bias, or interest for the

witness to testify." Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996) (en banc);

Hurd v. State, 725 S.W.2d 249, 252 (Tex. Crim. App. 1987) (en banc). The ability to

expose a witness's motivation to testify against a defendant is a "proper and important

function of the constitutionally protected right of cross-examination." Hurd, 725 S.W.2d at

252 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). "[A] criminal defendant

states a violation of the Confrontation Clause by showing that he was prohibited from

engaging in otherwise appropriate cross-examination designed to show a prototypical form

of bias on the part of the witness." Shelby, 819 S.W.2d at 546. However, parameters of

cross-examination remain within the sound discretion of the trial court, which must balance

13
probative value against prejudicial risks including undue prejudice, embarrassment,

harassment, confusion of the issues, and undue delay. Chambers v. State, 866 S.W.2d

9, 26-27 (Tex. Crim. App. 1993) (en banc); see Van Arsdall, 475 U.S. at 679. The trial

court's determination is only reversible if the appellant shows a clear abuse of discretion.

Chambers, 866 S.W.2d at 27.

Prior to trial, the court granted the State's motion in limine, which requested that

Cramer not inquire about acts of domestic violence during the course of the marriage of

Cramer and S.W. However, during direct examination, Tyson testified about incidents of

domestic violence. She stated:

There were constant-there was a lot of domestic violence between the
mother [S.W.] and the step-father [Cramer]. . . . And then there were some
incidents where there was some violence between [Cramer] and
[E.B.]. . . . [Cramer] slapped [S.W.] across the face. . . . [Cramer] closed the
[car] window on [S.W.'s] arm and wouldn't let her out.

After this testimony, Cramer "requested leave to further inquire about what Tyson did to

verify this information" and to "test whether Tyson knew about situations in which the

opposite occurred." The trial court denied Cramer's request.

As the proponent of evidence of bias, Cramer was required to show that the

evidence was relevant "by demonstrating that a nexus, or logical connection, exist[ed]

between the witness's testimony and the witness's potential motive to testify in favor of the

other party." Woods v. State, 152 S.W.3d 105, 111 (Tex. Crim. App. 2004) (providing that

a logical connection may exist when the witness is placed in a vulnerable position and may

have a motive to testify in favor of the State). Here, Cramer does not reveal a potential

motive for Tyson to have testified in favor of the State; Cramer does not assert that Tyson

would have benefitted from her testimony; and, Cramer does not explain how his questions

14
would have demonstrated Tyson's potential motive. Therefore, Cramer has not

demonstrated that a logical connection existed between Tyson's testimony that there was

domestic violence in the family and any possible motive for Tyson to testify for the State.

See id. We conclude that Cramer has not shown that the trial court clearly abused its

discretion when it denied Cramer's request to cross-examine Tyson regarding domestic

violence. We overrule Cramer's ninth issue.

VI. EXTRANEOUS ACTS

By his tenth issue, Cramer contends that the trial court should have granted his

motion for mistrial because the State failed to give him prior notice of its intent to introduce

evidence of extraneous crimes and/or bad acts under Texas Rule of Evidence 404(b).

The State has a duty to provide "reasonable notice" of intent to introduce certain

extraneous offenses upon the defendant's request. Mitchell v. State, 982 S.W.2d 425, 427

(Tex. Crim. App. 1998). In order to request reasonable notice, the defendant may either

file a discovery motion with the trial court or file a request of notice directly with the State.

Espinosa v. State, 853 S.W.2d 36, 38-39 (Tex. Crim. App. 1993) (en banc) (per curiam).

If the request is served directly on the State, it is self-executing, and no further action is

required by the trial court. Id. at 38. However, if a defendant files a motion requesting

court action, the State's duty to provide reasonable notice is not triggered until the trial

court rules on the motion. Mitchell, 982 S.W.2d at 427; Espinosa, 853 S.W.2d at 38

(holding that "when a defendant relies on a motion for discovery to request notice pursuant

to Rule 404(b), it is incumbent upon him to secure a ruling on his motion in order to trigger

the notice requirements of that rule").

15
 Here, the record shows that Cramer filed a pre-trial discovery motion with the trial

court. Having pursued his 404(b) notice through a motion addressed to the trial court, it

was Cramer's burden to obtain a ruling on his motion. See Mitchell, 982 S.W.2d at 427;

Espinosa, 853 S.W.2d at 38. Because Cramer did not secure a ruling, the State was not

required to give notice. See Mitchell, 982 S.W.2d at 427; Espinosa, 853 S.W.2d at 38.

We overrule Cramer's tenth issue.

V. CONCLUSION

We affirm the trial court's judgment.

NELDA V. RODRIGUEZ
Justice

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

Memorandum Opinion delivered and
filed this 20th day of November, 2008.

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