Curtis Johnson v. the State of Texas

In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                      No. 07-25-00343-CR


                             CURTIS JOHNSON, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 140th District Court
                                Lubbock County, Texas
        Trial Court No. DC-2025-CR-1101, Honorable Douglas H. Freitag, Presiding

                                       April 29, 2026
                              MEMORANDUM OPINION
                      Before DOSS and YARBROUGH and PRATT, JJ.


      Appellant, Curtis Johnson, appeals from his conviction by jury of the offense of

continuous sexual abuse of a young child1 and the resulting sentence of 40 years of




      1 TEX. PENAL CODE § 21.02(b).
imprisonment.2 Through one issue, he claims the trial court erred in admitting extraneous

offense evidence because he received insufficient notice of same. We affirm.


                                            BACKGROUND


       Appellant sexually abused his six-year-old granddaughter, X.D., nearly every night

during the few months X.D. and her family lived with him. This abuse came to light when

the child’s mother, A.J., suspected an inappropriate relationship between the two and

asked X.D. about it. The child confirmed it. The family moved out of Appellant’s home

and stayed with a friend and then moved to a hotel. The children’s school called family

services because the family was staying in a hotel.3 The allegations against Appellant

were discovered during the ensuing CPS investigation. Thereafter, X.D. was interviewed

by a forensic interviewer and examined by a sexual assault nurse examiner.


       Evidence of extraneous offenses of sexual abuse by Appellant against A.J. were

introduced at trial under article 38.37. A.J.’s testimony about that abuse was the subject

of a pretrial hearing, and while Appellant objected to the admission of that evidence then

and at trial, he did not request a continuance or other relief from the trial court pertaining

to that admission.


       At the close of evidence, Appellant was found guilty and sentenced as noted.




       2 This is a first-degree felony, punishable by a term of imprisonment for life or for any term of not

more than 99 years or less than 5 years and a fine not to exceed $10,000. TEX. PENAL CODE § 12.32.
       3 A.J. has nine children, eight of whom reside with her.


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                                          ANALYSIS


         Through a single issue, Appellant argues the trial court erred in admitting

extraneous offense evidence under article 38.37 of the Code of Criminal Procedure

because he did not receive sufficient notice. The State’s Notice of Intent notified Appellant

that it intended to introduce evidence of, in part, “[a]ny and all instances of Aggravated

Sexual Assault of a Child committed against [A.J.] from on or about November 23, 1993

through November 23, 2001” and “[a]ny and all instances of Indecency with a Child

committed against [A.J.] from on or about November 23, 1993 through November 23,

2001.”


         Appellant argues these statements did not inform him of “how many instances he

needed to prepare a defense for, what kind of actions he was accused of, or where the

actions took place.” Further, he claimed, the Notice “could have been referring to one

hundred instances or two instances. Building a proper defense requires at least some

knowledge as to what the accusations are.”


Standard of Review and Applicable Law


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

discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). A

trial court abuses its discretion “when its decision is so clearly wrong as to lie outside that

zone within which reasonable persons might disagree.” Id. at 576. Typically, evidence

of extraneous offenses is not admissible at the guilt-innocence phase of a trial to prove

that a defendant acted in conformity with his criminal nature by committing the charged

offense. TEX. R. EVID. 404(b). However, the Code of Criminal Procedure provides an

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exception for certain cases, including those involving continuous sexual abuse of a

complainant under seventeen years of age.             Article 38.37, section 2, states,

“[n]otwithstanding Rules 404 and 405 . . . evidence that a defendant has committed a

separate offense described by Subsection (a)(1) or (2) may be admitted in the trial of an

alleged offense described by Subsection (a)(1) or (2) for any bearing the evidence has

on relevant matters, including the character of the defendant and acts performed in

conformity with the character of the defendant . . . if the trial judge, after conducting a

hearing outside the presence of the jury, determines the evidence “will be adequate to

support a finding by the jury that the defendant committed the separate offense beyond

a reasonable doubt.” TEX. CODE CRIM. PROC. art. 38.37 §§ 2(b), 2-a. See also Distefano

v. State, 532 S.W.3d 25, 31 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).


       The statute also provides that the State “shall give the defendant notice of the

state’s intent to introduce in the case in chief evidence described by Section 1 or 2 not

later than the 30th day before the date of the defendant’s trial.” Id. at § 3. The purpose

of the notice requirement in article 38.37 is to avoid surprise and to allow a defendant to

mount an effective defense. Pena v. State, 554 S.W.3d 242, 248–49 (Tex. App.—

Houston [14th Dist.] 2018, pet. ref’d).


Preservation


       To preserve error regarding the State’s failure to provide reasonable notice of its

intent to use extraneous offense evidence, the defendant must request a continuance to

alleviate the effects of surprise. Martines v. State, 371 S.W.3d 232, 249 (Tex. App.—

Houston [1st Dist.] 2011, no pet.) (citing Martin v. State, 176 S.W.3d 887, 900 (Tex.

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App.—Fort Worth 2005, no pet.); Koffel v. State, 710 S.W.2d 796, 802 (Tex. App.—Fort

Worth 1986, pet. ref’d) (citing Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App.

1982)) (“[The defendant’s] failure to request a postponement or seek a continuance

waives any error urged in an appeal on the basis of surprise.”)).


       Here, the extraneous evidence at issue was the subject of a pretrial hearing, during

which A.J. testified to the instances of abuse perpetrated on her by Appellant when she

was a child. Defense counsel raised the issue of the sufficiency of the notice of the State’s

intent to introduce extraneous acts under section 38.37, and the judge took that under

advisement. Counsel objected to the evidence again at trial and in response to his

objection, the court stated,


       State’s Notice of Intent to Offer and Introduce Evidence of Extraneous
       Offenses pursuant to 404, 609(f), and 37.07, Section 3 of the Texas Code
       of Criminal Procedure, Paragraph 6 specifically states, “Any and all
       instances of indecency with a child committed against [A.J.] from on or
       about November 23rd, 1993 through November 23rd, 2001,” which is
       specifically the testimony that [A.J.] gave when we had the 38.37 hearing
       last week where she spoke about being touched in her vaginal area under
       the clothing by [Appellant] when she was approximately four or five years
       old in a bathroom.


       Counsel clarified, “not to argue with the Court, what you’re telling me is that in your

opinion that is specific enough and it does meet what the statute requires?” The court

answered, “Correct.” Counsel requested a running objection and the court said, “You

believe that’s not sufficient notice. I understand. The Court is going to overrule that.”

Counsel indicated his understanding, and the trial proceeded.


       Counsel did not request a continuance or otherwise bring to the trial court’s

attention his need for time or other relief to address the alleged surprise from the lack of

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specificity in the State’s Notice.4 Accordingly, he has not preserved his complaint for our

review. See Martin, 176 S.W.3d at 900 (complaint waived due to failure to request a

continuance to address surprise); Storey v. State, No. 07-08-00467-CR, 2010 Tex. App.

LEXIS 1219, at *6 (Tex. App.—Amarillo Feb. 22, 2010, no pet.) (mem. op., not designated

for publication) (no motion for continuance was filed and “since the tenor of appellant’s

complaint relates to surprise (i.e. the lack of time to prepare a means to address matters

about which he did not previously know) the complaint was not preserved”).


Harm


        Even if we assume both Appellant preserved error regarding the sufficiency of the

State’s notice and that the trial court erroneously overruled Appellant’s objection

concerning the notice, we find he has failed to demonstrate harm.


        The admission of extraneous offense evidence without proper notice is non-

constitutional error subject to a harm analysis under Texas Rule of Appellate Procedure

44.2(b). TEX. R. APP. P. 44.2(b). We disregard any error that does not affect Appellant’s

substantial rights. Id. We will not reverse a conviction when, after examining the record

as a whole, we have a fair assurance that the error did not influence the jury or had but a


        4 Counsel went into more detail about the insufficiency of the State’s Notice and the surprise

stemming therefrom during a pretrial hearing held about a week prior to trial. He did not file a continuance
at that time either. We note also that at the beginning of trial, this exchange took place:

        State: And then as far as the 38.37 hearing we had last week on [A.J.], I didn’t know if
        Defense was going to have an objection to that. We just need a ruling from the Court
        before opening statements . . .

        Defense: I’m thinking they can get into that, Judge. I don’t have a good-faith objection right
        now on that.

        It was not until A.J. was about to testify at trial that counsel raised an objection again and
        asked the court if he still had his “running objection from last week.”

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slight effect. McDonald, 179 S.W.3d at 578 (citing Johnson v. State, 967 S.W.2d 410,

417 (Tex. Crim. App. 1998)). 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 the appellant’s ability to mount

an adequate defense.” McDonald, 179 S.W.3d at 578 (citing Hernandez v. State, 176

S.W.3d 821, 824 (Tex. Crim. App. 2005)).


       The State’s notice concerning Appellant’s alleged sexual abuse of A.J. set forth

the offenses, i.e., aggravated sexual assault of a child and indecency with a child, against

the specific victim, i.e., A.J., and the alleged date ranges during which those offenses

occurred, i.e., on or about November 23, 1993, through November 23, 2001. Appellant

was made aware of that information more than a year before trial. And, A.J. testified at a

pretrial hearing several days before trial during which A.J. described the instances of

sexual abuse. Defense counsel also cross-examined A.J.


       As noted above, when faced with the admission of the evidence at trial, Appellant

did not request more time to explore the extraneous evidence. Nor did he explain how

his defense strategy would have differed if he had been given more specific information

in the notice. Instead, Appellant argues on appeal that the jury was faced with differing

versions of how Appellant would have had access to X.D. to commit the alleged offense

and that it could have found the versions inconsistent but still found him guilty “based on

the fact that they believed he was acting in conformity with his character based on A.J.’s

38.37 testimony.” Without an explanation of how his trial strategy would have differed,

we cannot find harm here. See, e.g., Lara v. State, 513 S.W.3d 135, 143 (Tex. App.—

Houston [14th Dist.] 2016, no pet.) (finding no harm when no continuance was requested


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and when counsel did not explain how his trial strategy would have been different if he

had been provided notice).


       Considering the entire record and the trial court’s alleged error, in light of the

purpose of avoiding surprise to Appellant, we find the alleged error did not have a

substantial and injurious effect or influence in determining the jury’s verdict. The error, if

any, must be disregarded. See TEX. R. APP. P. 44.2(b).


                                           CONCLUSION


       Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.




                                                         Alex Yarbrough
                                                             Justice

Do not publish.




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