McDonald v. State

• Citation: 179 S.W.3d 571
• Decision Date: 23 November 2005
• Docket Number: No. PD-1943-04.,PD-1943-04.
• Parties: Robert Charles McDONALD, Appellant v. The STATE of Texas.
• Court: Supreme Court of Texas

179 S.W.3d 571

Robert Charles McDONALD, Appellant v. The STATE of Texas.

No. PD-1943-04.

Court of Criminal Appeals of Texas.

November 23, 2005.

COPYRIGHT MATERIAL OMITTED

Kurt B. Wentz, Houston, for Appellant.

Kelly Ann Smith, District Atty., Houston, Matthew Paul, State's Atty., Austin, for State.

OPINION

PRICE, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, WOMACK, JOHNSON, KEASLER, HOLCOMB, and COCHRAN, JJ., joined.

At the appellant's trial for indecency with a child, evidence of uncharged misconduct was admitted over the appellant's objection that he did not receive notice as required by Texas Rule of Evidence 404(b). On appeal, the Fourteenth Court of Appeals held that notice was not required to admit the evidence because it arose from the same transaction as the conduct with which the appellant was charged. We granted review of the appellant's claim that notice was required because the uncharged conduct did not arise from the same transaction. We hold that the court of appeals erred because the State was required to provide notice to the appellant because the uncharged conduct introduced at trial was not part of the same transaction. However, the trial court's abuse of discretion did not result in harmful error, and we affirm the appellant's conviction.

I. Facts and Procedural History

The appellant was charged with indecency with a child. The allegation stems from contact the appellant had with the complainant, a ten-year-old girl, while she was staying at her grandmother's house in Houston, Texas. The evidence at trial showed that the appellant had been introduced to the complainant and her grandmother on a previous occasion by the complainant's uncle. At that time, the appellant held himself out to be a priest and was introduced as "Father McDonald," although there is no record of his being ordained within the state of Texas.

On the day of the offense, the appellant presented himself during the morning at the grandmother's apartment unannounced and adorned in clerical attire. He was admitted by the complainant's grandmother, who sat in the living room with the appellant and discussed transacting from a mail-order catalog. During the visit, the appellant repeatedly asked the complainant to sit on his lap, and, once she did, he made her straddle his legs while he moved his leg under her "private area," held her by the waist when she tried to leave his lap, and kissed her breast. The complainant also testified that the appellant asked to see under her dress and tried to look under her dress. For this conduct, the appellant was charged with indecency with a child.

Later the same day, the complainant's younger female cousin arrived at the apartment after attending summer school. The complainant's sister and cousin played a game called "dog," which involved the children crawling around on the floor, barking, and acting like dogs. The complainant was not playing the game with her sister and cousin, but she was in the room and she saw the appellant pull her younger cousin's underwear and pants down to reveal her "bottom." The appellant also had complainant's cousin straddle his leg while he rocked her, touched her breast, and asked the cousin to touch his "private area."

During the trial against the appellant for indecency with the complainant, the State sought to introduce evidence of the appellant's conduct with the complainant's younger cousin. At the appellant's request, the State provided notice of its intent to introduce certain acts of uncharged misconduct involving the cousin, namely the similar act of touching the cousin's breast. Despite the appellant's timely request, the State did not notify the appellant that it would introduce evidence of the appellant pulling the cousin's pants down. Over the appellant's objection that there was no notice of the State's intent to use this evidence, the trial court admitted the testimony. The appellant was convicted of indecency with a child, pled true to enhancements concerning prior convictions, and was sentenced to life imprisonment.

The appellant appealed his conviction for indecency with a child, claiming that the trial court erred in admitting the evidence because the State had failed to provide notice as required by Texas Rule of Evidence 404(b). The Fourteenth Court of Appeals held that there was no error by the trial court in admitting the evidence without notice because the evidence arose from the same transaction, making it exempt from the notice requirement of 404(b).¹ The court of appeals also held, in the alternative, that 404(b) requires only reasonable notice of the State's intent to introduce non-character conformity uncharged misconduct and that, since the appellant introduced no authority to define the State's notice as unreasonable, he had no point of error that afforded a basis for relief.²

The appellant petitioned this Court for discretionary review, claiming that the court of appeals erred in finding that the evidence introduced did not require notice because it arose from the same transaction and also that the court of appeals improvidently dismissed his point of error even though he provided authority and a factual rationale for his conclusion.

We granted the appellant's petition for discretionary review.

II. Parties' Arguments

The appellant argues that the uncharged sexual misconduct involving the complainant's cousin at a later time should not have been admitted without notice as required by Rule 404(b) and that the court of appeals erred in finding that this conduct did not require notice because it arose from the same transaction. The appellant asserts that, although he asked for notice of uncharged misconduct, the State provided notice of only some of the acts toward the cousin, such as the appellant touching her breast, but did not provide notice of its intent to introduce evidence of the appellant pulling down the cousin's pants.

Further, the appellant claims that the act admitted without notice was not part of the same transaction because it was committed later in the day and was of a far more serious nature than those for which the appellant was on trial. To support his position, the appellant cites the concurring opinion from the court of appeals, which said that the majority misapplied the applicable law and erroneously relied on the close proximity in time, location, and subject matter to determine that the appellant's actions toward complainant's cousin were part of the same transaction as his actions toward the complainant.³

Finally, the appellant asserts that the court of appeals erred when it dismissed his complaint under the premise that he had failed to cite authority defining the standard for reasonable notice or a rationale for showing how the State's notice of the other offenses involving the cousin was not reasonable notice of the unspecified offenses. The appellant points out that he cited case law for the proposition that, upon timely objection, uncharged misconduct of which the appellant had no notice should not have been admitted at trial. Further, he discussed why the admission of the uncharged misconduct was damaging and why the trial court's decision was not within the zone of reasonable disagreement.

The State argues that the evidence of the appellant pulling the complainant's cousin's pants down and asking her to touch him is exempt from the notice requirement of Rule 404(b) because it arose in the same transaction as the events involving the complainant. To support this position, the State points to the fact that the complainant and her cousin were molested on the same day, during the appellant's same visit to their grandmother's apartment, and within a short time period. The State contends that the plain language of Rule 404(b) categorizes these facts as arising in the same transaction, thereby requiring no notice for admission. The State also notes that the appellant never objected to the admissibility of the evidence, only that he had not received reasonable notice as required by 404(b). Finally, the State argues that providing the appellant with notice of its intent to introduce evidence regarding contact with the cousin in addition to a video tape detailing the uncharged misconduct at issue, there was sufficient notice to prevent surprise and to apprise the appellant of the offenses the State intended to introduce at trial involving the complainant's cousin.

III. Law and Analysis

A. Properly Presented Point of Error

The court of appeals held that the appellant provided no authority or reasoning to show how the notice he received failed to constitute reasonable notice of the State's intent to offer uncharged misconduct. We disagree. The appellant properly objected at trial to the lack of reasonable notice of the State's intent to introduce uncharged offenses as required by Rule 404(b), namely that he pulled down the cousin's pants and asked her to touch him. The appellant also properly asserted this error on appeal by providing a record that identified his objection to the lack of notice and by identifying case law, namely Buchanan v. State, to assert that, upon a defendant's request for notice of uncharged misconduct under Rule 404(b), the State is obligated to provide reasonable notice of that conduct.⁴ Accordingly, we hold that the appellant has presented a point of error that affords a basis for relief, and we will consider whether he had reasonable notice as required by 404(b).

B. Uncharged Misconduct

The court of appeals held that the trial court did not abuse its discretion in admitting the uncharged misconduct. It concluded that the State was not required to provide notice of its intent to introduce evidence that the appellant pulled the cousin's pants down because this act was part of the same transaction as the appellant kissing the complainant's breast and having her straddle his leg.

In determining whether a trial court erred in...