Mark Augustin Castellano v. State

ACCEPTED
01-14-00486-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/31/2015 5:53:09 PM
No. 01-14-00486-CR CHRISTOPHER PRINE
CLERK

In the
Court of Appeals for the First District of Texas
At Houston FILED IN
1st COURT OF APPEALS
 HOUSTON, TEXAS
3/31/2015 5:53:09 PM
No. 1363068 CHRISTOPHER A. PRINE
In the 184th District Court Clerk
Of Harris County, Texas


MARK AUGUSTIN CASTELLANO
Appellant
V.
THE STATE OF TEXAS
Appellee


STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas

TIFFANY JOHNSON
JAMIE REYNA
Assistant District Attorneys
Harris County, Texas

HEATHER A. HUDSON
Assistant District Attorney
Harris County, Texas
State Bar No. 24058991

1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
Fax No.: 713/755-5809

Counsel for Appellee

ORAL ARGUMENT WAIVED
 IDENTIFICATION OF THE PARTIES

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of

the names of all interested parties is provided below.

COUNSEL FOR THE STATE:

Ms. Devon Anderson―District Attorney

Ms. Jamie Reyna
Ms. Tiffany Johnson ―Assistant District Attorneys at trial

Ms. Heather Hudson―Assistant District Attorney on appeal

APPELLANT:

Mark Augustin Castellano

COUNSEL FOR APPELLANT:

Mr. Eric Davis
Ms. Jackie Carpenter―Assistant Public Defenders at trial

Ms. Jani Maselli Wood―Assistant Public Defender on appeal

PRESIDING JUDGE:

Hon. Jan Krocker

i
 STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 39.7, the State waives oral argument.

TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES............................................................................i

STATEMENT REGARDING ORAL ARGUMENT......................................................ii

INDEX OF AUTHORITIES ..............................................................................................iv

STATEMENT OF THE CASE........................................................................................... 1

STATEMENT OF FACTS ................................................................................................... 1

SUMMARY OF THE ARGUMENT ................................................................................. 7

REPLY TO APPELLANT’S FIRST POINT OF ERROR ............................................. 9

I. Standard of review and applicable law............................................................. 9
II. The record contains evidence supporting the jury’s rejection of the
issue of sudden passion. .................................................................................. 10
III. Appellant did not establish the issue of sudden passion as a matter
of law. ................................................................................................................ 13
REPLY TO APPELLANT’S SECOND POINT OF ERROR .................................... 14

I. Standard of review and applicable law........................................................... 14
II. Service of request for notice. ......................................................................... 15
III. The notice provided by the State was reasonable under the
circumstances. ................................................................................................... 16
IV. Appellant was not harmed by the lack of notice. ........................................ 18
REPLY TO APPELLANT’S THIRD POINT OF ERROR......................................... 19

ii
 I. There is no evidence that would permit the jury rationally to
determine that appellant was guilty only of the lesser offense of
criminally negligent homicide. ........................................................................ 19
II. Any error in the trial court’s failure to submit a lesser included
offense instruction on criminally negligent homicide was harmless.......... 23
CONCLUSION AND PRAYER ...................................................................................... 25

CERTIFICATE OF COMPLIANCE............................................................................... 25

CERTIFICATE OF SERVICE.......................................................................................... 26

iii
 INDEX OF AUTHORITIES

CASES

Allen v. State,
202 S.W.3d 364 (Tex. App.--Fort Worth 2006, pet. ref ’d) ........................................... 18
Bradshaw v. State,
244 S.W.3d 490 (Tex. App.--Texarkana 2007, pet. ref ’d) ............................................. 13
Cleveland v. State,
177 S.W.3d 374 (Tex. App.--Houston [1st Dist.] 2005, pet. ref ’d) ............................. 10
Espinosa v. State,
853 S.W.2d 36 (Tex. Crim. App. 1993) ........................................................................... 15
Henderson v. State,
29 S.W.3d 616 (Tex. App.--Houston [1st Dist.] 2000, pet. ref ’d) ......................... 15, 17
Hernandez v. State,
914 S.W.2d 226 (Tex. App.--Waco 1996, no pet.) ................................................... 16, 18
Jackson v. State,
248 S.W.3d 369 (Tex. App.--Houston [1st Dist.] 2007, pet. ref ’d) ............................. 20
Johnson v. State,
967 S.W.2d 410 (Tex. Crim. App. 1998) ......................................................................... 18
Juarez v. State,
409 S.W.3d 156 (Tex. App.--Houston [1st Dist.] 2013, pet. ref ’d) ............................. 23
Levan v. State,
93 S.W.3d 581 (Tex. App.--Eastland 2002, pet. ref ’d) ............................................ 23, 24
Matlock v. State,
392 S.W.3d 662 (Tex. Crim. App. 2013) ......................................................................... 10
McKinney v. State,
179 S.W.3d 565 (Tex. Crim. App. 2005)......................................................................... 12
Moncivais v. State,
425 S.W.3d 403 (Tex. App.--Houston [1st Dist.] 2011, pet. ref ’d) ................... 9, 10, 13
Naasz v. State,
974 S.W.2d 418 (Tex. App.--Dallas 1998, pet. ref ’d) ...................................................... 9
Owens v. State,
119 S.W.3d 439 (Tex. App.--Tyler 2003, no pet.) .......................................................... 17

iv
Rousseau v. State,
855 S.W.2d 666 (Tex. Crim. App. 1993) ......................................................................... 20
Saunders v. State,
913 S.W.2d 564 (Tex. Crim. App. 1995) ................................................................... 23, 24
Scott v. State,
57 S.W.3d 476 (Tex. App.--Waco 2001, pet. ref ’d) ....................................................... 16
Sebalt v. State,
28 S.W.3d 819 (Tex. App.--Corpus Christi 2000, no pet.) ..................................... 15, 16
Self v. State,
860 S.W.2d 261 (Tex. App.--Fort Worth 1993, pet. ref ’d) ........................................... 18
Smith v. State,
355 S.W.3d 138 (Tex. App.--Houston [1st Dist.] 2011, pet. ref ’d) ............................. 13
Stadt v. State,
182 S.W.3d 360 (Tex. Crim. App. 2005) ......................................................................... 20
Thomas v. State,
699 S.W.2d 845 (Tex. Crim. App. 1985) ......................................................................... 20
Trujillo v. State,
227 S.W.3d 164 (Tex. App.--Houston [1st Dist.] 2006, pet. ref ’d) ............................. 20
Webb v. State,
36 S.W.3d 164 (Tex. App.--Houston [14th Dist.] 2000, pet. ref ’d).......... 14, 15, 16, 17
STATUTES

TEX. PENAL CODE ANN. § 19.02(a)(1) (West 2013) ........................................................... 9
TEX. PENAL CODE ANN. § 19.02(a)(2) (West 2013) ........................................................... 9
TEX. PENAL CODE ANN. § 19.02(d) (West 2013) ............................................................... 9
TEX. PENAL CODE ANN. § 19.05(a) (West 2013) .............................................................. 20
TEX. PENAL CODE ANN. § 6.03(d) (West 2013) ............................................................... 20
RULES

TEX. R. APP. P. 44.2(b) .......................................................................................................... 18
TEX. R. EVID. 404(b) ...................................................................................................... 14, 15

v
 TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

Appellant was charged by indictment with the offense of murder. (C.R. 31).

On June 6, 2014, a jury convicted appellant of the charged offense and sentenced him

to 27 years’ confinement in the Institutional Division of the Texas Department of

Criminal Justice. (C.R. 300-01). Appellant filed a timely written notice of appeal.

(C.R. 305-06).

STATEMENT OF FACTS

Appellant was involved in a volatile relationship with the complainant, Michelle

Warner. At the time of the offense, appellant and Warner were living together in an

apartment with their 3-year-old son, Cayden. (5 R.R. 30, 37). On Monday, September

24, 2012, Warner failed to show up for work at the law firm where she had recently

obtained a position as a paralegal. (5 R.R. 144, 148-49). The law firm unsuccessfully

attempted to contact Warner. (5 R.R. 148-49). When Warner did not show up for

work again the following day, her employer notified the police that she was missing.

(5 R.R. 153, 155).

Warner’s brother, David Chiffin, learned that Warner was missing on Monday,

September 24th, when her ex-husband called and notified him that Warner had not

shown up to pick up their 11-year-old daughter, Hayley. (5 R.R. 34-35). Chiffin called

appellant in an attempt to locate Warner. (5 R.R. 35-36). Appellant told Chiffin that
he and Warner had been in an argument Saturday evening, and that she had left the

apartment sometime that night. (5 R.R. 37; 15 R.R. SX 5). Appellant said that

Warner did not take her car, and she left Cayden behind. (15 R.R SX 5).

On September 25, 2012, the police conducted a welfare check at appellant’s

apartment, but did not find anything unusual. (5 R.R. 133-34). The police filed a

missing persons report. (5 R.R. 135). On September 27, 2012, Officer Danny Do

with the Missing Persons Unit of the Houston Police Department called appellant. (5

R.R. 192). During their recorded telephone conversation, appellant told Officer Do

that he came home from work on Saturday evening, September 22nd, and got into a

fight with Warner. (15 R.R. SX 6). Appellant said Warner punched him in the face

and then went into her room and shut the door. Id. Appellant told Officer Do that

he went to her room later that evening to confront her, but Warner was gone. Id.

Appellant stated that Warner left her car, but took her purse, keys, and cell phone. Id.

Appellant also said that Warner was a drug user and had a history of leaving for

several days at a time. Id.

A few weeks before Warner’s disappearance, appellant submitted his

resignation from his job at SugarLandPC, where he worked as an IT technician. (6

R.R. 55, 60). Appellant told his employer that he was going to live with his parents in

Odessa, Texas to get away from Warner. (6 R.R. 60). Appellant subsequently

withdrew his resignation, but asked his employer if he could take off a week from

2
work beginning on Monday, September 24th, so that he could find childcare for

Cayden. (9 R.R. 167-68).

Appellant told Officer Do that he packed up Cayden, got in Warner’s car, and

drove from Houston to his parents’ home in Odessa that Saturday night. (15 R.R. SX

6). Appellant arrived in Odessa the following morning and told his parents that he

and Warner had been in a fight, and that she had left. (8 R.R. 96, 99). Appellant told

Officer Do that he drove back to Houston on Sunday to get the rest of his clothing.

(15 R.R. SX 6). On Monday morning, appellant went to work to turn in his

resignation, and then returned to Odessa. (6 R.R. 73; 9 R.R. 168; 15 R.R. SX 6).

Appellant also said that he left behind a note for Warner. (15 R.R. SX 6). The police

found a note on a mirror in appellant’s apartment which stated:

Michelle,

Cayden and I are gone, you can have the apartment all to yourself. I am
taking the car. Since you can’t pay it, and I now owe my dad $3K b/c of
you, get it refinanced through your rich daddy and get my name off of
it. You are welcome to see Cayden, but since you are on a drug-filled
weekend I guess you [won’t call] since Grandma called and said you
turned your phone off. I will get you drug tested this time! Bitch!

The Asshole

(6 R.R. 111-13; 15 R.R. 220).

The police also recovered surveillance footage of the parking lot in front of

appellant’s apartment from the weekend of September 22nd through September 24th.

(7 R.R. 22). The video shows appellant pulling into the parking lot in his truck at 6:48

3
Saturday evening. (7 R.R. 23). Appellant entered the apartment at 6:57 p.m. (7 R.R.

23). At 8:44 p.m., appellant walks out of the apartment to the parking lot, and backs

Warner’s car into a spot underneath the carport. (7 R.R. 25-25). Appellant proceeded

to make several trips back and forth from the apartment to the car, and eventually left

in Warner’s car at 9:28 on Saturday night. (7 R.R. 25; 15 R.R. SX 149). Appellant

returned to the apartment complex on Monday, September 24th. (7 R.R. 26). At 3:21

a.m., appellant dragged a large container to the car. (7 R.R. 26-27). At 5:41 a.m.,

appellant made multiple trips to the car before leaving around 6:00 a.m. (7 R.R. 29-

30).

In addition, the police recovered evidence from a dumpster in the alley behind

appellant’s parent’s home in Odessa. Inside the dumpster, police found a Pampers

box containing various items, including women’s clothing, appellant’s business cards,

shredded pieces of a credit card which belonged to Warner, a pair of women’s

sunglasses, a pink handbag, feminine hygiene products, and a wad of black tape. (7

R.R. 83-93). The police also found legal documents bearing Warner’s name in a black

plastic container inside the Castellano’s home in the bedroom where appellant was

staying. (8 R.R. 30-31). A portable closet was also removed from appellant’s

bedroom which contained a white purse, a set of keys labeled “Michelle,”

miscellaneous cards bearing Warner’s name, Warner’s student ID card, and a credit

card in Warner’s name. (8 R.R. 31-32).

4
 Appellant agreed to fly to Houston for a recorded, non-custodial interview. (6

R.R. 119). Before returning to Houston, appellant was interviewed by the producers

of the “Dr. Phil” television show regarding Warner’s disappearance. (6 R.R. 122-23; 7

R.R. 30-31). On September 30, 2012, appellant met with Fil Waters, a homicide

detective with the Houston Police Department. (6 R.R. 128-29; 15 R.R. SX 7).

Appellant initially maintained that he and Warner had gotten into an argument, that

she had slammed the door to her bedroom, and that he had later discovered that she

was gone. Id. However, appellant eventually admitted that the argument became

violent. Id. Appellant said “I grabbed her by her neck and just threw her on the bed

and I heard it pop and her tongue popped out and that was it. I sit there and held it

and by the time I realized what I did, she was dead.” Id. Appellant demonstrated for

the police how Warner attempted to strike him and how he grabbed her around the

neck. Id. Appellant said “I push her and then I grab her, and then about that time

I’m facing the bed and then I fall on top of her and crush her windpipe.” Id.

Appellant admitted that he “just locked up,” and held Warner’s neck for at least a

minute and a half or two minutes. Id. After killing Warner, appellant taped her feet

together and placed a plastic bag over her head. Id. Then he hid her body in the

closet and drove Cayden to Odessa. Id. When he returned to Houston, appellant put

Warner’s body in a large crate, dragged it down the stairs and loaded it in the car. Id.

Appellant drove to a remote field south of Midland, Texas and buried the body in a

shallow grave. Id.
5
 After confessing to the police, appellant placed multiple phone calls to family

members and friends and admitted that he had killed Warner. (8 R.R. 112; 15 R.R. SX

7). Appellant also called the producers of the “Dr. Phil” show and informed them

that he had killed Warner. (5 R.R. 51-52; 7 R.R. 31-32).

Appellant drew a diagram directing police to the general location of Warner’s

body. (7 R.R. 72). In a rural area south of Midland, FBI agent Sherry Rice found a

decomposing body partially covered in dirt. (8 R.R. 38, 53). The body was identified

as Warner by fingerprint comparison. (8 R.R. 139).

The autopsy of Warner’s body revealed that she sustained two fractures to her

airway: a fracture of the hyoid bone and a fracture of the cricoid cartilage. (8 R.R.

161-65). Evidence of petechiae on the inner surfaces of her lips indicated that

Warner died of asphyxiation. (8 R.R. 157-58). The medical examiner opined that the

cause of the Warner’s death was strangulation. (8 R.R. 169). Appellant was arrested

and charged with murder. (7 R.R. 17).

6
 SUMMARY OF THE ARGUMENT

Point of Error One: The evidence is legally sufficient to support the jury’s

rejection of appellant’s claim that he was acting under the influence of sudden

passion arising from an adequate cause. Even assuming that the jury believed

appellant’s statements that the complainant yelled at him and attempted to strike him,

this provocation did not rise to the degree that would render an ordinary person

incapable of cool reflection. Furthermore, the jury was entitled to disbelieve

appellant’s statements. Therefore, appellant failed to establish the issue of sudden

passion as a matter of law.

Point of Error Two: The trial court did not abuse its discretion in admitting

extraneous offense testimony over appellant’s objection that the State failed to provide

timely notice pursuant to Rule of Evidence 404(b). Although the notice was only

provided four days before trial, it was not unreasonable for the State to provide notice

immediately upon discovering the extraneous offense evidence. Moreover, appellant

had at least ten days of preparation before the extraneous offense testimony was

presented to the jury. In addition, appellant has not demonstrated that the lack of

notice negatively affected his defensive strategy.

Point of Error Three: The trial court did not err in refusing to submit an

instruction on the lesser included offense of criminally negligent homicide. There is

no evidence in the record that appellant was unaware of the risk of death associated

with strangling the complainant. Furthermore, appellant was not harmed by the lack
7
of an instruction on criminally negligent homicide because the jury received an

instruction on the intervening lesser included offense of manslaughter, but chose to

reject this option in favor of finding that appellant intentionally or knowingly caused

the complainant’s death.

8
 REPLY TO APPELLANT’S FIRST POINT OF ERROR

In his first point of error, appellant contends that the evidence is legally

sufficient to support a finding that he killed the complainant under the influence of

sudden passion arising from an adequate cause.

I. Standard of review and applicable law.
The issue of sudden passion may be raised by the defendant to mitigate the

punishment for murder. See TEX. PENAL CODE ANN. § 19.02(d) (West 2013). The

defendant bears the burden to prove by a preponderance of the evidence that the

homicide occurred under the immediate influence of sudden passion arising from an

adequate cause. See id; Naasz v. State, 974 S.W.2d 418, 420 (Tex. App.--Dallas 1998,

pet. ref’d). “Sudden passion” means “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 2013). An “adequate

cause” is defined as a “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). “Neither ordinary anger nor fear alone

raises an issue on sudden passion arising from adequate cause.” Moncivais v. State, 425

S.W.3d 403, 407 (Tex. App.--Houston [1st Dist.] 2011, pet. ref’d).

In reviewing a challenge to the legal sufficiency of the evidence to support a

factfinder’s rejection of an issue that the defendant had the burden to prove, a civil
9
 law standard is applied. See Moncivais, 425 S.W.3d at 407; Cleveland v. State, 177 S.W.3d

374, 386-87 (Tex. App.--Houston [1st Dist.] 2005, pet. ref’d). The defendant must

overcome two obstacles. First, the reviewing court examines the record for evidence

favorable to the jury’s finding, ignoring all evidence to the contrary unless a

reasonable factfinder could not. See Matlock v. State, 392 S.W.3d 662, 669 (Tex. Crim.

App. 2013); Cleveland, 177 S.W.3d at 387. If there is no evidence supporting the

finding, the reviewing court then examines the record to determine whether the

defendant established, as a matter of law, that he killed the complainant while under

the influence of sudden passion arising from an adequate cause. Cleveland, 177 S.W.3d

at 387-89. In determining whether the defendant has established sudden passion as

matter of law, the reviewing court does not consider evidence of sudden passion

which is subject to a credibility assessment by the factfinder. Id. at 389. In most

cases, the issue of sudden passion is resolved by the jury’s assessment of the witness’s

credibility; therefore, a defendant would rarely be able to establish sudden passion as a

matter of law. Id.1

II. The record contains evidence supporting the jury’s rejection of the issue of sudden passion.
In support of his claim that he was acting under the influence of sudden

passion, appellant cites to statements made during his non-custodial confession to the

1
This Court has previously acknowledged that a defendant can establish the issue of sudden passion
as a matter of law only in “those rare instances in which the sudden passion issue can be determined
from evidence that is not subject to a credibility determination by the jury as, for example, a
stipulation of evidence by the parties.” Id.
10
police.2 Appellant told Investigator Waters that he came home from work and got

into an argument with Warner. (15 R.R. SX 7). Appellant stated that Warner called

him “a sorry fucking pussy,” and said that she would control him for the rest of his

life. Id. According to appellant, Warner was screaming in his face and she attempted

to strike him. Id. Appellant initially stated that grabbed her by the neck and threw her

on the bed. Id. Appellant later stated that he grabbed her around the neck, they fell

backwards onto the bed, he “twist[ed],” and then he heard a “pop.” Id.

Appellant also performed a visual demonstration of the altercation for

Sergeant Brian Harris. Id. Appellant reenacted how he pushed Warner, grabbed her

around the neck, and held her down on the bed. Id. Appellant stated that he “just

locked up” and remained on top of Warner for at least a minute and a half or two

minutes. Id. Appellant indicated that he heard a popping noise and then Warner’s

tongue stuck out. Id.

The evidence is sufficient to support the jury’s negative finding on the issue of

sudden passion because appellant’s confession reflects that he did not have adequate

cause to strangle the complainant. Even assuming that the jury believed appellant’s

claim that the complainant cursed at him and attempted to strike him, these actions

do not provoke such a degree of anger, rage, resentment or terror that an ordinary

2
Appellant also relies upon the testimony of defense witness John Laughlin that the complainant’s
physical injuries were consistent with the defensive theory that appellant fell on her and accidentally
broke her neck. See (Appellant’s Brief pp. 9, 11). However, this testimony has no bearing on
whether appellant was acting under the influence of sudden passion arising from an adequate cause.
11
person would have been rendered incapable of cool reflection. See McKinney v. State,

179 S.W.3d 565, 570 (Tex. Crim. App. 2005) (holding that the victim’s actions of

shouting at the defendant and pushing the defendant did not rise to the level of

adequate cause). Moreover, there is no evidence that the complainant was armed, or

that appellant was injured.

In addition the record reflects that appellant had a prior history of violent

behavior. Appellant told the police that he had previously gotten into a fight with the

complainant, and he grabbed her by the neck, tackled her to the ground, and held her

until she said she could not breathe. (15 R.R. SX 7). In addition, appellant’s co-

worker, Reynaldo Trinidad, testified that appellant told him about an incident in 2009

where he choked the complainant for eight seconds. (9 R.R. 113-15). Trinidad

further testified about an unrelated incident where appellant attempted to run over

the complainant with his car. (9 R.R. 116-19).

The jury also heard testimony from appellant’s supervisor, Eric Johnson, that

appellant threatened to kill Warner on two different occasions. (9 R.R. 156). First,

appellant told Johnson that he was going to kill Warner so that his parents could take

care of Cayden. (9 R.R. 156-57, 189-91). On another occasion, appellant came in to

work yelling that Warner had physically assaulted him. (9 R.R. 158). Appellant said

that he needed to find a pipe because he was going to kill her. (9 R.R. 159). The

second threat occurred only a few months before the murder. (9 R.R. 159). In

addition, Johnson testified that appellant had requested to take the week beginning
12
 September 24th off from work to resolve Cayden’s childcare situation. (9 R.R. 167-

68).

Considering that appellant had previously expressed a desire to kill the

complainant in order to take his son to live with his parents, that he had previously

choked the complainant, and that he had arranged to take off from work immediately

following the murder, a reasonable factfinder could have found that appellant

anticipated his actions. “Anticipation of an event and preparation of a response

indicates a defendant had time to deliberate over an action and did not act under the

immediate influence of sudden passion.” Moncivais, 425 S.W.3d at 407. As such, the

evidence is sufficient to support the jury’s rejection of appellant’s claim that he was

acting under the influence of sudden passion.

III. Appellant did not establish the issue of sudden passion as a matter of law.
Furthermore, the only evidence of sudden passion is the appellant’s own

statements. Moreover, appellant admitted that he had initially lied about the

circumstances surrounding the complainant’s death. As the sole judge of the

credibility of the evidence, the jury was entitled to disbelieve appellant’s version of

events. See Smith v. State, 355 S.W.3d 138, 149 (Tex. App.--Houston [1st Dist.] 2011,

pet. ref ’d); Bradshaw v. State, 244 S.W.3d 490, 503 (Tex. App.--Texarkana 2007, pet.

ref ’d). Therefore, appellant has not established as a matter of law that he was acting

under the influence of sudden passion. Accordingly, appellant’s first point of error

should be overruled.
13
 REPLY TO APPELLANT’S SECOND POINT OF ERROR

Appellant further argues that the trial court erred in admitting extraneous

offense testimony from State’s witness Eric Johnson that appellant had previously

threatened to kill the complainant. Appellant’s trial counsel objected that the State

failed to provide timely notice of is intent to introduce the evidence in accordance

with Rule of Evidence 404(b). (9 R.R. 140). The record reflects that defense counsel

filed a request for notice on April 28, 2014. (C.R. 54-55). Voir dire commenced on

May 20, 2014. (2 R.R. 1). The State provided notice of its intent to introduce Eric

Johnson’s testimony in a second amended notice filed on May 23, 2014. (C.R. 248-

49). On May 27, 2014, the jury was sworn and the trial began. (5 R.R. 1). Eric

Johnson testified about the extraneous threats on June 2, 2014. (9 R.R. 1, 141).

I. Standard of review and applicable law.
Rule 404(b) provides that extraneous offense evidence may be admissible in

certain circumstances “provided that upon timely request by the accused in a criminal

case, reasonable notice is given in advance of trial of intent to introduce in the State’s

case-in-chief such evidence other than that arising in the same transaction.” TEX. R.

EVID. 404(b). The purpose of the notice requirement is to adequately apprise the

defense of the extraneous offenses the State intends to introduce at trial and to

prevent unfair prejudice resulting from the introduction of this evidence at trial. Webb

v. State, 36 S.W.3d 164, 176, 178 (Tex. App.--Houston [14th Dist.] 2000, pet. ref ’d).

The trial court’s determination of reasonableness is reviewed for an abuse of
14
 discretion. Sebalt v. State, 28 S.W.3d 819, 822 (Tex. App.--Corpus Christi 2000, no

pet.).

II. Service of request for notice.
The State is only required to provide reasonable notice of its intent to

introduce extraneous offense evidence upon timely request by the accused. See TEX.

R. EVID. 404(b). A request for notice may be made by: (1) serving the State with a

request for notice; or (2) filing a discovery motion requesting the court to order such

notice and secure a ruling thereon. See Espinosa v. State, 853 S.W.2d 36, 39-40 (Tex.

Crim. App. 1993) (Baird, J., concurring); Henderson v. State, 29 S.W.3d 616, 625 (Tex.

App.--Houston [1st Dist.] 2000, pet. ref ’d). In this case, appellant’s counsel filed a

written request for 404(b) notice.3 A certificate of service on a written request for

404(b) notice creates a rebuttable presumption that the document was properly

served. Webb, 36 S.W.3d at 177. Here, the request for 404(b) notice filed by appellant

contains no certificate of service reflecting that the State received timely notice of the

request. (C.R. 54-55). The record only reflects that the State filed an original notice

of its intent to introduce extraneous offense evidence on May 8, 2014. (C.R. 57-59).

Even assuming that the State received a timely request, the notice provided by the

State was reasonable under the circumstances.

3
The clerk’s record does not contain a motion for discovery.
15
III. The notice provided by the State was reasonable under the circumstances.
Whether notice is considered “reasonable” depends upon the facts and

circumstances of the case. Webb, 36 S.W.3d at 178. Notice provided at least ten days

before trial is presumed to be reasonable. Scott v. State, 57 S.W.3d 476, 480 (Tex. App.-

-Waco 2001, pet. ref ’d). Conversely, three days’ notice over a weekend is generally

considered to be presumptively unreasonable. See Hernandez v. State, 914 S.W.2d 226,

234 (Tex. App.--Waco 1996, no pet.) (holding that three-day notice given over the

weekend was unreasonable when the request for notice had been on file for ten

months);4 but see Sebalt, 28 S.W.3d at 821-22 (noting that there is no authority for the

proposition that notice given the Friday preceding a Monday trial is per se

unreasonable);

In the instant case, four days’ notice was provided over a weekend. However,

there is no indication from the record that the State was attempting to ambush the

defense with the extraneous offense evidence. According to the prosecutor, the State

learned about appellant’s extraneous threats to kill the complainant after speaking with

appellant’s boss, Charles Swihart. (9 R.R. 145-46). This conversation occurred on

Friday, May 23, 2012, and notice was provided to the defense that same day. (9 R.R.

145-46).

4
As noted supra, the record does not reveal the actual date that the State was served with the request
for notice. Even assuming the State was served with the request on the same date it was filed, less
than a month transpired before the State provided notice of its intent to introduce Eric Johnson’s
testimony.
16
 Considering that the purpose of the notice requirement is to prevent unfair

surprise to the defense, it was not unreasonable for the State to immediately provide

notice upon discovery of the extraneous offense evidence. See Owens v. State, 119

S.W.3d 439, 444 (Tex. App.--Tyler 2003, no pet.) (holding that notice provided on the

same day as jury selection was sufficient to prevent trial by ambush because notice

was provided immediately after the extraneous offense evidence was discovered);

Henderson, 29 S.W.3d at 625 (it was not unreasonable for the State to provide notice of

its intent to introduce extraneous offense evidence eight days before the witness

testified because notice was given as soon as the State learned of the extraneous

offense evidence).

Moreover, no argument has been raised, either at trial or on appeal, that the

lack of advance notice affected the defense’s ability to cross-examine the witness

about the extraneous threats. To the contrary, the record reflects that the witness was

extensively cross-examined by defense counsel concerning the specifics of the

extraneous threats made by appellant. See generally (9 R.R. 170-183). Lack of surprise

is an important consideration is determining the reasonableness of the notice. See

Webb, 36 S.W.3d at 178. In the instant case, the defense received notice of the

extraneous offense evidence eleven days before the testimony was actually introduced.

Therefore, the trial court did not abuse its discretion in finding that the notice

provided by the State was reasonable for the purposes of Rule 404(b). See, e.g., Owens,

119 S.W.3d at 444 (emphasizing that the extraneous offense evidence was not
17
 presented to the jury until ten days after the defense had received notice); Self v. State,

860 S.W.2d 261, 264 (Tex. App.--Fort Worth 1993, pet. ref ’d) (holding that five days’

advance notice was reasonable because the defense was able to cross-examine the

witness about the extraneous offense, and the defense was not surprised by the

extraneous offense testimony).

IV. Appellant was not harmed by the lack of notice.
In assessing harm from a trial court’s error in admitting extraneous offense

evidence without reasonable notice, the reviewing court applies a Rule 44.2(b) analysis.

See Allen v. State, 202 S.W.3d 364, 369 (Tex. App.--Fort Worth 2006, pet. ref ’d);

Hernandez, 176 S.W.3d at 825. Accordingly, any error in the trial court’s admission of

extraneous offense evidence must be disregarded unless if affected appellant’s

substantial rights. See TEX. R. APP. P. 44.2(b). In assessing whether the error had a

substantial influence on the verdict, the reviewing court examines the record as a

whole. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Allen, 202 S.W.3d

at 369.

The improper introduction of extraneous offense evidence is harmless unless:

(1) it substantially influenced the jury’s verdict; and (2) the defendant was surprised by

the evidence. Allen, 202 S.W.3d at 369. “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 extraneous-offense evidence.” Id.

18
 As noted previously, appellant does not contend that the lack of notice

negatively affected the defense’s cross-examination of the witness. Instead, appellant’s

general assertion of harm consists of a single sentence: “Had this been known, it

surely would have been a different voir dire.” (Appellant’s Brief p. 13). Appellant

fails to offer any explanation as to how the defensive strategy utilized during voir dire

would have changed given prior notice of the State’s intent to introduce testimony

regarding appellant’s prior threats to kill the complainant. Absent any meaningful

argument from appellant demonstrating the prejudicial impact of the lack of notice,

any error in the admission of the extraneous offense evidence is harmless.

REPLY TO APPELLANT’S THIRD POINT OF ERROR

In his final point of error, appellant asserts that the trial court erred in refusing

to submit a lesser included offense instruction on criminally negligent homicide. The

record reflects that the trial court granted appellant’s request to charge the jury on the

lesser included offense of manslaughter, but denied appellant’s request to charge the

jury on the lesser included offense of criminally negligent homicide. (11 R.R. 14-16;

C.R. 270).

I. There is no evidence that would permit the jury rationally to determine that appellant was guilty
only of the lesser offense of criminally negligent homicide.
An accused is entitled to a jury charge instruction on a lesser offense if: (1) the

lesser offense is a lesser included offense under Article 37.09 of the Texas Code of

Criminal Procedure; and (2) there is some evidence that would permit the jury

19
rationally to find that the defendant is guilty only of the lesser offense. Stadt v. State,

182 S.W.3d 360, 363 (Tex. Crim. App. 2005); Rousseau v. State, 855 S.W.2d 666, 672

(Tex. Crim. App. 1993). “The credibility of the evidence and whether it is

controverted or conflicts with other evidence may not be considered in determining

whether such a charge should be given.” Thomas v. State, 699 S.W.2d 845, 849 (Tex.

Crim. App. 1985).

Criminally negligent homicide is a lesser included offense of murder. Thomas,

699 S.W.2d at 847; Jackson v. State, 248 S.W.3d 369, 371 (Tex. App.--Houston [1st Dist.]

2007, pet. ref ’d). A person commits criminally negligent homicide if he causes the

death of an individual by criminal negligence. TEX. PENAL CODE ANN. § 19.05(a)

(West 2013). Criminal negligence is defined as follows:

A person acts with criminal negligence, or is criminally negligent, with
respect to circumstances surrounding his conduct or the result of his
conduct when he ought to be aware of a substantial and unjustifiable
risk that the circumstances exist or the result will occur. The risk must
be of such a nature and degree that the failure to perceive it constitutes a
gross deviation from the standard of care that an ordinary person would
exercise under all the circumstances as viewed from the actor’s
standpoint.

TEX. PENAL CODE ANN. § 6.03(d) (West 2013).

The fact that a defendant may not have intended the result does not necessarily

mean he is entitled to a charge on criminal negligence. Trujillo v. State, 227 S.W.3d 164,

168 (Tex. App.--Houston [1st Dist.] 2006, pet. ref ’d). “The key to criminal negligence

is the failure of the actor to perceive the risk created by his conduct.” Jackson, 248

20
S.W.3d at 371. The record must contain evidence reflecting that the defendant was

unaware of the risk. Id. at 371-72.

Appellant contends that the trial court erred in refusing to submit an

instruction on the lesser offense of criminally negligent homicide because there was

evidence that he accidentally fell on the complainant, breaking her neck. See

(Appellant’s Brief p. 15). This evidence was introduced in the form of expert

testimony from John Laughlin, a forensic engineer, that the complainant’s injuries

were consistent with appellant grabbing her neck, falling backwards over the bed, and

bearing the force of his body weight down on her neck. (10 R.R. 79-80).

This evidence raises a defensive theory that the complainant’s death was

accidental; however, it does not support appellant’s claim that the trial court should

have submitted a jury instruction on criminally negligent homicide. The indictment

charging appellant with murder alleges that he caused the complainant’s death by

“placing his hands around the complainant’s neck and squeezing.” (C.R. 31). In

accordance with the indictment, the charge authorized the jury to convict appellant of

murder if it found that he intentionally or knowingly caused the complainant’s death

by placing his hands around her neck and squeezing. (C.R. 268). The charge also

permitted the jury to convict appellant of the lesser included offense of manslaughter

if it determined that he recklessly caused the death of the complainant by placing his

hands around her neck and squeezing. (C.R. 270). Similarly, appellant’s proposed jury

instruction would have allowed the jury to convict him of the lesser included offense
21
of criminally negligent homicide if it found that appellant negligently caused the

complainant’s death “by placing his hands around her neck and squeezing.” (C.R.

265).

The fact that the defense presented some evidence supporting an alternate

theory for the cause of the complainant’s death has no bearing on whether appellant

negligently squeezed the complainant’s neck. In fact, the defense expert’s testimony

that there was no evidence of squeezing around the complainant’s neck refutes, rather

than supports, appellant’s proposed instruction allowing the jury to find that he

negligently strangled the complainant to death.5 (10 R.R. 80).

Appellant does not cite to any other evidence supporting the proposed

instruction, nor does the record contain any evidence reflecting that appellant was

affirmatively unaware of the substantial and unjustifiable risk of death that could

result from squeezing the complainant’s neck. To the contrary, appellant’s statements

to police indicate that he grabbed the complainant’s neck and choked her for at least a

minute and a half or two minutes. (15 R.R. SX 7). The medical examiner testified

that appellant’s confession was consistent with the results of the autopsy. (8 R.R.

169). Moreover, appellant applied enough pressure to the complainant’s neck to

fracture her hyoid bone and cricoid cartilage.

5
Even if the jury had believed the defensive theory of an accidental fall, it would not have been able
to convict appellant of criminally negligent homicide under the language of appellant’s proposed
instruction; its only option would have been an acquittal.

22
 In addition, the State presented testimony from appellant’s co-worker that

appellant had previously choked the complainant for eight seconds. (9 R.R. 114-15).

Appellant also admitted to the police that he had previously grabbed the complainant

by the neck, tackled her, and choked her until she said she could not breathe. (15 R.R.

SX 7). Thus, the record reflects that appellant was aware of the risk of asphyxiation

created by squeezing the complainant’s neck. “It is common knowledge that people

can die by strangulation, even inadvertently.” Juarez v. State, 409 S.W.3d 156, 163 (Tex.

App.--Houston [1st Dist.] 2013, pet. ref ’d). As such, the evidence does not reflect

that appellant failed to perceive the risk that his conduct could result in serious bodily

injury or death.

II. Any error in the trial court’s failure to submit a lesser included offense instruction on criminally
negligent homicide was harmless.
The failure to properly instruct the jury on a lesser included offense generally

results in reversible error because the jury is denied an opportunity to convict the

defendant of the lesser offense. See Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim.

App. 1995); Levan v. State, 93 S.W.3d 581, 585 (Tex. App.--Eastland 2002, pet. ref ’d).

However, this error may be harmless if the jury is presented with the option of

convicting the defendant of some other lesser included offense raised by the evidence

and the jury declines to do so. See Levan, 93 S.W.3d at 586.

In this case, the jury was instructed on the lesser included offense of

manslaughter. The culpable mental states for manslaughter and criminally negligent

23
homicide are similar; both involve a risk of death created by the defendant. Id. at 586.

A defendant is guilty of manslaughter if he is aware of the risk created by his

conduct, but consciously disregards that risk. Id. If the defendant is not aware of the

risk created by his conduct, he is guilty of criminally negligent homicide. Id.

Here, the jury was presented with the option to convict appellant of the

intervening lesser included offense of manslaughter if it found that he consciously

disregarded the risk created by his conduct. The jury chose to reject this option in

favor of finding that appellant intentionally and knowingly caused the complainant’s

death by placing his hands around her neck and squeezing. (C.R. 268). If the jury

had concluded that the complainant’s death was caused by a risk associated with

appellant’s conduct, rather than an intentional murder, it could have convicted

appellant of the lesser included offense of manslaughter. Thus, appellant was not

harmed by the trial court’s failure to instruct the jury on criminally negligent homicide.

See Saunders, 913 S.W.2d at 572 (reasoning that the trial court’s failure to submit an

instruction on a lesser included offense raised by the evidence may be harmless if the

court submits an instruction on another lesser included offense also raised by the

evidence because the jury’s options are not limited to conviction of the greater

offense or acquittal); Levan, 93 S.W.3d at 586-87 (holding that the omission of a lesser

included instruction on criminally negligent homicide was harmless because the jury

rejected the option to find the defendant guilty of the lesser included offense of

manslaughter). Accordingly, appellant’s third point of error should be overruled.
24
 CONCLUSION AND PRAYER

It is respectfully submitted that all things are regular and the conviction should

be affirmed.

DEVON ANDERSON
District Attorney
Harris County, Texas

/s/ Heather A. Hudson
HEATHER A. HUDSON
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24058991
hudson_heather@dao.hctx.net
curry_alan@dao.hctx.net

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that this computer-generated document has

a word count of 6,060 words, based upon the representation provided by the word

processing program that was used to create the document.

/s/ Heather A. Hudson
HEATHER A. HUDSON
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24058991

25
 CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been

submitted for service by e-filing to the following address:

Jani Maselli Wood
Assistant Public Defender
1201 Franklin, 13th Floor
Houston, Texas 77002
Tel: (713) 368-0016
Fax: (713) 368-9278
Jani.Maselli@pdo.hctx.net

/s/ Heather A. Hudson
HEATHER A. HUDSON
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24058991
Date: 3/31/2015

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