Date: 11-04-2017

Case Style:

Case Number: 10-16-00242-CR

Judge: Tom Gray 

Court: Texas Tenth District Court of Appeals

Plaintiff's Attorney: Will Thompson
R. Lowell Thompson

Defendant's Attorney:

Damara H. Watkins

Description: Jay Yoon Chung appeals from a judgment that sentenced him to twenty years in
prison for possession of a controlled substance.1 TEX. HEALTH AND SAFETY CODE ANN. §
481.115(b) (West 2010). The sentence was enhanced due to two prior convictions for the
offense of Indecency with a Child. Chung complains that the trial court erred by
assessing attorney's fees in the judgment, erred in the admission of evidence by a
jailhouse informant pursuant to Rule 403 of the Rules of Evidence, and erred in the
admission of testimony relating to bad acts of which he did not receive notice prior to
trial pursuant to Article 37.07 of the Code of Criminal Procedure and Rule 404(b) of the
Rules of Evidence. Because we find that the trial court erred in its assessment of
attorney's fees, we will modify the judgment to delete that assessment. Because we find
no other reversible error, we otherwise affirm the judgment of the trial court.
ATTORNEY'S FEES
In his first issue, Chung complains that the trial court erred by including an
assessment for $10,174.72 in court-appointed attorney's fees because he had been found
to be indigent and there was no evidence before the trial court that he was no longer
indigent. The State agrees that the assessment was improper and we agree. Pursuant to
Mayer v. State, there was no evidence to support the assessment. See Mayer v. State, 309
S.W.3d 552 (Tex. Crim. App. 2010). We sustain issue one.
ADMISSION OF EVIDENCE
In his second issue, Chung complains that the trial court abused its discretion in
admitting testimony given by an individual who was imprisoned with Chung before his
original sentence was reversed on appeal. The inmate, who was a felon with multiple
convictions for crimes of moral turpitude, testified that Chung had told him that he had
Chung v. State Page 3

been dealing with the desire to molest young girls for approximately fourteen years and
that he would lure the girls into his van using a puppy. The inmate also testified that
Chung threatened to seek revenge against the prosecutors who had tried his case. Chung
complains that the evidence should have been excluded because its probative value was
substantially outweighed by the danger of unfair prejudice pursuant to Rule 403 of the
Rules of Evidence.
PRESERVATION OF ERROR
A timely objection must be made in order to preserve an error in the admission of
evidence. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). The objection
should be made as soon as the ground for objection becomes apparent. Id. If a question
clearly calls for an objectionable response, the objection should be made before the
witness responds to the question. Id. If the objection is not made until after the
objectionable question has been asked and answered, and no legitimate reason can be
shown to justify the delay, the objection is untimely; error is waived. Id.
The inmate testified that he had contacted the prosecutors involved in the case
because Chung had told him that "he was going to hurt you guys, and he victimizes
younger girls." Chung had told the inmate the names of the specific prosecutors who
were involved in the prior prosecution, and the inmate had sent each of them letters
regarding the threats Chung had made against them. The inmate also testified that
Chung had told him that he had been luring and molesting young girls and was
Chung v. State Page 4

concerned about being charged with other offenses based off of things that were found
in the van he was driving when he was arrested. Chung did not object to the testimony
until after this testimony had been admitted. Chung's objection was not timely, and
therefore, this complaint was waived. TEX. R. APP. P. 33.1. We overrule issue two.
LACK OF NOTICE
In his third issue, Chung complains that the trial court abused its discretion by
allowing the testimony of a detective from the sex offender apprehension unit with the
Dallas Police Department regarding his sex offender registration requirements because
he did not receive notice of the State's intent for her to testify pursuant to Code of
Criminal Procedure Article 37.07 and Rule 404 of the Rules of Evidence. Chung argues
that because he did not have notice, he was unable to prepare to rebut the testimony of
the detective who was called to testify in the rebuttal phase of the punishment trial to
refute the evidence presented during Chung's defense regarding his good character and
behavior.
The State is required to give a defendant notice that it intends to introduce
evidence at punishment of the defendant's crimes, wrongs, or other acts during its case
in-chief. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1), (g); TEX. R. EVID. 404(b)(2).
In determining whether the State violated the notice requirements of Rule 404(b) of the
Rules of Evidence and Article 37.07 of the Texas Code of Criminal Procedure, the Texas
Court of Criminal Appeals has held that where the non-disclosed evidence was presented
Chung v. State Page 5

by the State in rebuttal of the defendant's evidence rather than as part of its case-in-chief,
no violation occurred. See Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App. 2002). Because
the testimony of the detective was given in rebuttal of Chung's evidence regarding his
good character, it was not erroneous for the trial court to admit the evidence. We overrule
issue three.
CONCLUSION

Outcome: Having found that the trial court erroneously assessed attorney's fees, we modify the judgment to delete the amount of $10,174.72 in court-appointed attorney's fees. Having found no other reversible error, we otherwise affirm the judgment of the trial court.

Plaintiff's Experts:

Defendant's Experts:

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