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He observed a machete among the State's exhibits. During the guilt phase of trial, Thomas testified that she lived with Francis at the time of the robbery. When Thomas came home on the day of the robbery, she noticed that Francis, who had a history of drug abuse, was visibly upset.

Francis threw Thomas onto the bed, climbed on top of her, and repeatedly struck her in the face with his fists. According to Thomas, she lost and regained consciousness several times as Francis beat her. With respect to the machete, Thomas testified that she kept it, along with a pocketknife, in her bedroom for safety reasons. Francis placed both knives on the bed next to Thomas. After the robbery, Thomas walked to a neighbor's house and called the police.

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Thomas testified that she feared for her life during the incident and that, as a result of the beating she endured from Francis, she suffered severe swelling in her face, injuries to her hand and leg, and the loss of four teeth. The State also presented testimony from a family violence counselor who met with Thomas after the incident and two law enforcement officers, one of whom responded to Thomas's call for police assistance and the other who investigated the incident.

Officer C. Porter, the investigating officer from HPD's family violence unit, was asked whether he found Thomas credible. The trial court instructed the jury to disregard Porter's statement, but denied a mistrial.

During cross-examination of Thomas, defense counsel elicited testimony that Thomas had not mentioned Francis's use of knives during the robbery to any of the State's other witnesses. After the close of evidence and the presentation of closing arguments, the jury found Francis guilty of aggravated robbery. Before the punishment phase of trial began, Francis pleaded true to one enhancement paragraph alleging a prior conviction for murder.

During punishment, the State introduced evidence of Francis's full criminal history, including the murder conviction and other convictions for evading arrest, driving with a suspended license, and possession of less than one gram of cocaine. The State also recalled Thomas as a punishment witness, at which time she gave further testimony regarding the reasons Francis was upset on the day of the robbery.

Saved Healed & Delivered (the Testimony Of Francis Waive)

She explained that Francis was upset because his car had been towed from their apartment complex. Francis told Thomas that he had threatened to kill the employees working in the apartment management office if his car was not returned. After Francis spoke with the employees in the apartment management office, Thomas saw Francis retrieve the machete from her bedroom and begin to sharpen it. Thomas further testified that while Francis was in custody awaiting trial on the aggravated robbery charge, he threatened her over the telephone.

Thomas testified that Francis told her that if he was convicted, two people would die. Thomas took this to be a threat against her life. Francis alleged that the State's belated production of the recordings constituted unreasonable notice of its intent to use the threatening phone call as extraneous offense evidence during punishment.

In response to Francis's objection, the prosecutor stated that she did not produce the recordings until shortly before trial because she had not heard the recordings until then. That is, she produced the recordings to defense counsel on the same day she heard them. The prosecutor further stated that she informed defense counsel that the phone call about which she intended to introduce evidence was one of the first phone calls on the recordings, occurring within the first twenty minutes of the tapes.

The trial court overruled Francis's objection and permitted Thomas's testimony. At the close of all the punishment evidence, the jury returned a sentence of seventy-five years' confinement. Francis appeals. Three of Francis's issues on appeal concern the trial court's rulings on the admissibility of evidence. Francis's first and second issues challenge the admission of the machete during the guilt phase of trial.

His third issue relates to evidence admitted during the punishment phase of trial, namely the evidence of the threatening phone call he made to Thomas while in custody awaiting trial. We review the trial court's evidentiary rulings for an abuse of discretion.

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Oprean v. State, S. Oprean, S. Ross, 32 S. In his first and second issues, Francis argues that the trial court erred by admitting the machete into evidence during the guilt phase of trial because the State willfully withheld the machete's existence in violation of the trial court's discovery order and failed to give notice under Rule of Evidence b. The State does not dispute that it failed to disclose the machete's existence until after the jury was sworn but before the presentation of any evidence. The trial court admitted the machete into evidence over Francis's objection that the State's violation of the discovery order made the machete inadmissible.


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The other weapon used during the robbery—the pocketknife—was not recovered by police or presented as evidence at trial. When the trial court admits evidence offered by the State that was not produced in compliance with a discovery order, the relevant inquiry is whether the prosecutor acted with specific intent to willfully disobey the discovery order by failing to turn over the evidence.

A prosecutor's actions may be extremely negligent or even reckless, but her conduct must rise to the level of willfulness to require exclusion of the evidence. See State v. LaRue, S. Whether the prosecutor intended to willfully disobey the discovery order may be inferred from the prosecutor's actions and words. See Oprean, S. We also consider the validity of the prosecutor's rationale and explanation for violating the discovery order, as well as whether the prosecutor suddenly discovered the evidence such that compliance with the terms of the discovery order was impossible.

As evidence of willfulness in this case, Francis points to the following circumstances: 1 the machete was not mentioned in any discovery, including the offense report, witness statements, or Thomas's medical records related to the robbery; 2 the machete's existence came to light only after defense counsel observed the machete among the State's exhibits at trial, not as a result of any voluntary act by the prosecutor; 3 the prosecutor had possession of the machete for one month before trial; and 4 the State failed to disclose other evidence—the threatening telephone calls Francis made to Thomas while in custody—in violation of the discovery order.

Francis argues that these circumstances are akin to the circumstances in Oprean, which the Court of Criminal Appeals determined required the exclusion of evidence. In Oprean, the Court of Criminal Appeals considered whether the prosecutor acted with the specific intent to willfully disobey a discovery order when she failed to produce a videotape of the defendant's prior DWI conviction.

First, the Court observed that on the night before the punishment phase began, the prosecutor, who had signed the original discovery order and thus knew its requirements, made an affirmative statement to defense counsel that she intended to introduce only the judgments and sentences from the defendant's prior DWI convictions. Yet, the next morning, she introduced a video recording of one of the DWI offenses.

Second, the Court found that the prosecutor's explanation for not producing the videotape—there was no article Because the prosecutor knew about the discovery order and attempted to circumvent its requirements, she made a conscious decision to violate the order's plain directive.


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We find Oprean distinguishable from the instant case. Having taken possession of the machete from Thomas one month before trial, the State undoubtedly should have produced the machete in a more timely fashion. The record, however, does not support a finding that the prosecutor intentionally disobeyed the discovery order or acted strategically to harm the defense. Unlike the prosecutor who had possession of the challenged evidence in Oprean, the prosecutor here had been involved in the case only for a short period of time.

Also unlike the prosecutor in Oprean, she did not intentionally mislead defense counsel about the evidence or its anticipated use during trial. Once she realized that the machete had not been disclosed to the defense before trial, the prosecutor provided the defense with all of the information she had regarding the machete and its alleged use during the robbery. The prosecutor explained that she had seen the machete referenced in the prior prosecutor's notes, and, although she acknowledged that those notes could have been privileged work product not subject to the defense's review, she incorrectly assumed the defense knew about the machete and thus did not produce the machete when she took possession of it before trial.

Although these statements may demonstrate negligence, the trial court could reasonably conclude that the prosecutor's statements did not establish that she intended to circumvent the trial court's discovery order or thwart the defense by her omission.

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Because the trial court could reasonably conclude from the prosecutor's statements that the State did not willfully withhold the machete in violation of the discovery order, we hold that the trial court did not err in admitting the machete into evidence over Francis's objection to the discovery order violation. Before trial, Francis requested notice under rule b of the State's intention to use evidence of extraneous offenses at trial.

The notice given by the State in response to Francis's request did not include notice of the State's intention to offer evidence that a machete was used during the commission of the robbery. Francis asserts that, because the State did not give timely notice of its intent to offer evidence of his use of the machete during the robbery, the trial court should have excluded the machete. Evidence of extraneous offenses is not admissible at the guilt phase of trial to prove that a defendant committed the charged offense in conformity with a bad character.

Extraneous offense evidence may be admissible, however, when it has relevance apart from character conformity. Rule of Evidence b conditions the admissibility of extraneous offense evidence on the State's compliance with the rule's notice provision. Hernandez v. R Evid. Because rule b 's notice requirement is a rule of evidence admissibility, it is error to admit extraneous offense evidence when the State has not complied with the notice provision of Rule b.

Hernandez, S. Francis's complaint here is not that the machete evidence was unreliable, irrelevant, or otherwise substantively inadmissible; his complaint is that the machete was improperly admitted because of the State's failure to provide rule b notice. Accordingly, we begin our analysis by considering whether the State was required to provide rule b notice because, as Francis contends, the use of the machete during the robbery constituted an extraneous offense. Section We construe the Penal Code according to the plain meaning of its terms unless the terms are ambiguous or the plain meaning leads to absurd results.

See Clinton v. A plain reading of section The evidence presented at trial established that the robbery occurred in Thomas's apartment and that Francis was living with Thomas in the apartment at the time of the robbery. The record therefore does not establish that the evidence of the machete's use during the robbery constitutes extraneous offense evidence of which the State was required to provide notice under rule b ; rather, the machete evidence was evidence of the offense of aggravated robbery.

Even assuming for the sake of argument that the trial court erred by admitting the machete evidence, Francis must still prove harm.

No constitutional error is involved when evidence of extraneous offenses are admitted without notice; consequently, we must disregard any error that did not affect Francis's substantial rights. See Hernandez, S. The rule b notice requirement serves to prevent surprise to the defendant and to apprise him of the offenses the State plans to introduce at trial.

Recognizing this purpose, the Court of Criminal Appeals has approved the reasoning of the Austin Court of Appeals regarding the application of the harm standard in rule b notice cases:. Although the violation of the notice provision resulted in the improper admission of evidence, we cannot employ the harm analysis used for violations of the rules of evidence concerning relevancy because the purpose of those rules differs from the purpose of the [Rule b notice provision].

The rules of evidence governing relevancy limit the use of evidence that may be unfairly prejudicial or misleading; for instance, evidence of other crimes, wrongs, or acts is inadmissible to prove the character of a person to show that the commission of the crime at issue is consistent with the defendant's character, but is admissible for other purposes. When evidence of an extraneous offense is admitted to prove such character conformity, we examine the record to determine how the admission of this substantively inadmissible evidence affected the jury's verdict.

That test is appropriate because the erroneous admission of the evidence thwarts the rule's purpose of shielding the jury from evidence used for improper reasons. The notice requirement found in [the Rule b ], however, does not relate to the substantive admissibility of the evidence. The lack of notice does not render the evidence inherently unreliable, but instead raises a question about the effect of procedural noncompliance. The purpose of the notice requirement is to enable the defendant to prepare to meet the extraneous offense evidence. Thus, we must analyze how the deficiency of the notice affected [the defendant's] ability to prepare for the evidence.

State, 80 S. Thus, because Francis did not object to the admissibility of the machete itself, we look only at the harm that may have been caused by the lack of notice and the effect the lack of notice had on his ability to mount an adequate defense. See McDonald v. The State does not dispute that the machete evidence was not disclosed to Francis until the day of trial and that he may have been surprised to learn of its existence.

Thus, Francis was aware that the State would offer some evidence that he used a knife even if there was no physical evidence.